Whitney v. Brown

• Decision Date: 11 May 1907
• Docket Number: 14,726
• Citation: 90 P. 277,75 Kan. 678
• Parties: W. O. WHITNEY et ux., as Partners, etc., v. NANNIE K. BROWN, doing business as the Brown Supply Company
• Court: Kansas Supreme Court

90 P. 277

75 Kan. 678

W. O. WHITNEY et ux., as Partners, etc., v. NANNIE K. BROWN, doing business as the Brown Supply Company

No. 14,726

Supreme Court of Kansas

May 11, 1907

Decided January, 1907.

Error from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FORCIBLE DISPOSSESSION--Tenant in Peaceable Possession after Expiration of Lease. The owner or one entitled to the possession of real estate may not forcibly dispossess a tenant who is in peaceable possession after the expiration of the tenancy. Where one, though entitled to the possession forcibly enters upon the premises during the absence of the tenant and removes the buildings and goods of the tenant, he is liable in an action for all damages occasioned by the unlawful and forcible entry.

2. PRACTICE, SUPREME COURT--Erroneous Instruction Disregarded by the Jury. Errors relied upon to reverse a judgment must be prejudicial to the party complaining. Where, from examination of the entire record, it is clear that the jury have disregarded erroneous instructions, and have rendered substantial justice by their verdict, which is based upon sufficient evidence, and is not affected by the other errors complained of, the judgment will be affirmed.

James A. Plotner, for plaintiffs in error.

Joseph P. Rossiter, for defendant in error.

OPINION

PORTER, J.:

A situation rather anomalous is presented by the record in this case. Plaintiffs in error seek to reverse a judgment recovered against them in the district court by Nannie K. Brown in an action for damages for forcibly taking possession of real estate, and for injury to personal property. While the proceeding in error was pending the parties stipulated that the cause should be reversed and remanded for another trial, and an order of reversal was entered. Afterward, upon request of the judge before whom the case was tried, the order of reversal was recalled and the cause set down for argument. Briefs have been filed and oral arguments made, from which it appears that the result of the trial below was not satisfactory to either party, although defendant in error has filed no cross-petition in error.

The facts, briefly stated, are as follow: In February, 1901, Nannie K. Brown was engaged in the implement and hardware business in Coffeyville, under the style of the Brown Supply Company, and was in possession of certain real estate under a written lease from the Atchison, Topeka & Santa Fe Railway Company, the owner. The real estate consisted of a tract of ground near the right of way of the railway company, upon which Mrs. Brown had erected three frame buildings and had stored therein a stock of farming implements and hardware. The buildings were of a temporary character. One of them was sixty-five feet square, twelve feet high, and was covered with felt, gravel and tin; another was thirty-two feet by ninety-two feet, and was covered with a shingle roof. All were surrounded by a board fence.

The lease was made in 1896, and contained a provision that it could be terminated by either party on thirty days' notice in writing. On December 24, 1900, the railway company served written notice upon Nannie K. Brown that it would terminate her tenancy on January 25, 1901. No steps were taken by Mrs. Brown to vacate. Thereafter, on February 11, 1901, the railway company made a lease to the W. O. Whitney Lumber & Grain Company, plaintiffs in error. On February 22 plaintiffs in error, claiming the right to the real estate by virtue of the subsequent lease, took forcible possession of the premises in the absence of Nannie K. Brown and her agents, and tore down the buildings and fence surrounding the lots and placed them upon an adjoining tract of land. The farm machinery and implements were also removed and placed on a vacant lot near by.

Mrs. Brown then brought this action to recover damages for the forcible dispossession, and for conversion, alleging in her petition that defendants had converted the buildings and contents to their own use, and asking damages in the sum of $ 2009 for full value of all the personal property. The W. O. Whitney Lumber & Grain Company, a partnership, filed an answer which admitted the removal of the buildings and machinery, but alleged that it was done in a careful and prudent manner, denied that any of the property had been destroyed or converted, and attempted to justify their acts upon the ground that they were entitled to take possession of the real estate by express authority from the railway company and by virtue of the subsequent lease.

The railway company was made a defendant and answered separately. On the trial its demurrer to plaintiff's evidence was sustained. The jury returned a verdict for $ 300 against the W. O. Whitney Lumber & Grain Company, plaintiffs in error.

A number of the errors complained of have more or less merit as abstract propositions of law, but in our view of the case are of little importance. The court instructed the jury, in substance, that after the service of the notice by the railway company upon Mrs. Brown terminating her tenancy she was entitled to a reasonable time thereafter in which to remove her property, and that if she failed to do so the railway company had the right to remove it or delegate its authority to plaintiffs in error. The question of reasonable time was not in the case. Had it been, it was not one for the jury to determine, for it was admitted that after the thirty days mentioned in the notice Mrs. Brown had from January 25 to February 22 to remove her property, which was more than reasonable.

The theory upon which plaintiffs in error made their defense, and upon which is based most of the claims of error, is that a landlord who is entitled to the possession of real estate at the expiration of a lease may take forcible possession of the premises and remove therefrom the personal property of the tenant, provided this can be accomplished without a breach of the peace. The principal...