Sharp v. Kinsman , 18 S.C. 108 ( 1882 )

The opinion of the court was delivered by

Mr. Justice MoIver.

The original plaintiff in this case having died pending this appeal, the action has been continued by an order of this Court, in the name of Warren Kinsman, as his administrator.

The object of the action was to recover damages for an alleged trespass on a certain piece of land claimed to be in tbe possession of "William Sharp. It seems that Sharp had rented about twenty acres of land from Kinsman for the year 1878, and also for the year 1879, and one of the questions in the case was whether the tenancy continued in 1880, the alleged trespass having been committed early in January, 1880, when the defendant entered upon the land and took up and carried away some of the vegetables growing on said land.

When the plaintiff closed his testimony the defendant moved: for a non-suit upon the ground that by the plaintiff’s own showing the lease terminated on the first day of January, 1880, and that the plaintiff had failed to show that he was in possession, either legally or illegally, when Kinsman entered, and also because the testimony showed that Kinsman had entered by the consent of one Green, the partner of the plaintiff, and was not, therefore, guilty of any trespass in so entering. The motion was refused, and this constitutes the basis of defendant’s first ground of appeal. The determination of the motion for a non-suit, depended entirely upon the view which the Circuit judge took of the testimony adduced by the plaintiff, and we see no error of law in the conclusion which he reached.

The second ground of appeal -alleges that the Circuit judge “erred in holding that a tenant, under a lease for a year, is entitled to three months’ notice to quit, and in failing to make the distinction between a tenancy for a year and a tenancy from year to year.” It is true that the jury were told that “three months’ notice, where there is a tenancy for a year, should be given, and the law requires that three months’ notice in writing should be given,” and that no distinction was drawn between a tenancy for a year and a tenancy from year to year; but the jury were told immediately afterwards: “I don’t think it necessary, in the consideration of this case, to make any ruling upon the point whether or not there was any necessity to give three months’ notice, because there is another question which I will submit to you, upon which I think the case should properly turn.” So that even if there was error in what the judge said to the jury as to the necessity for.notice to terminate a tenancy for a year, yet such error would be immaterial, inasmuch as the jury were subsequently told that it was unnecessary to consider the question of notice in this case.

The third, fourth and sixth grounds of appeal will be considered together, as they all make, substantially, the same point, to wit: that the judge erred in charging the jury on the facts. These .•grounds, we think, are well taken. One of the questions of fact .in the case was whether Green was a partner or a mere employe •of Sharp, and the judge, in effect, took that question away from the jury, and instructed them that he was not a partner.

The fifth ground of appeal is based on a misapprehension of the judge’s charge, and need not, therefore, be considered. We do not understand that the judge charged as is imputed to him in this ground of appeal, but that his charge on this part of the case simply amounted to this: that where a tenant holds over after the expiration of his lease, the landlord has no right to take the law into his own hands and proceed to eject the tenant, but that his duty would be to call to his aid the process of the law; and in this there certainly was no error.

The ninth ground of appeal alleges that the Circuit judge erred in charging the jury as follows : “If you think the plaintiff was wholly out of possession, that would go very far to mitigate any damages that might arise in your mind, but he had no right to take the crop without process of law.” We cannot assent to the correctness of this instruction as we understand it. If the judge meant, as we suppose he did, to say to the jury that even if the tenancy of the plaintiff had been terminated, and the possession of the land had been surrendered or abandoned, so that there was no obstacle in the way of defendant’s entering, still he could not take the growing crop without process of law, then we think there was error in the charge. If a tenant rents a piece of land for a year, upon which he plants a crop which will not mature so that it can be removed by the end of the year, and at the expiration of his lease abandons or surrenders the possession of the land, and the landlord enters and appropriates the growing crop left there by the outgoing tenant, we do not see how he can be said to have committed any trespass.

The eighth ground of appeal complains of error in the charge as to damages. It does seem to us that while the jury were not told in so many words that they ought to give what was called “smart money,” yet the manifest tendency of the charge upon the subject of damages was to invite the jury to give something more than the value of the property taken, and that the judge plainly indicated his opinion that they should give more; and in this we think there was error, for the question as to the amount of the damages was exclusively for the jury without any intimation of opinion from the judge as to what they should give by way of damages.

The only remaining question is that raised by the seventh ground of appeal as to whether the counter-claim should have been allowed. This being an action of tort, the counter-claim set up for the balance of the rent due for 1879, could not be pleaded unless it was based upon a cause of action arising out of the “transaction set forth in the complaint as the foundation of the plaintiff’s claim,” or unless it was “connected with the subject of the action.” Code, § 173, subd. 1. The “transaction” set forth in the complaint as the foundation of the plaintiff’s claim was the alleged trespass in January, 1880, and certainly the claim for rent in 1879 could not be said to have arisen out of that “transaction.” Was it connected with “the subject of the action?” The subject of the plaintiff’s action was not the land, but the violation of plaintiff’s right" to the possession of the land. In speaking of the proper signification of this phrase as used in this section of the code, Pomeroy, in his work on Remedies, sec. 775, p. 801, says: “It seems, therefore, more in accordance with the nature of actions, and more in harmony with the language of the statute, to regard the ‘subject of the action’ as denoting the plaintiff’s principal primary right to enforce or maintain which the action is brought, than to regard it as denoting the specific thing in regard to-which the legal controversy is carried on.” See, also, cases cited in note 2 to section 785 of Pomeroy on Pern., p. 808. We think, therefore, that the counter-claim was properly disallowed; but on account of the errors hereinbefore specified there must be a new trial.

The judgment of this court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.