Fishburne v. Engledove , 91 Va. 548 ( 1895 )

Buchanan", J.,

delivered the opinion of the court.

The defendant in error brought an action of trespass on the case against the plaintiffs in error in the Corporation Court of the city of Boanoke, to recover damages from them on the ground that they had sued out a distress warrant and had it levied upon his property for rent alleged to be due, when in fact there was no rent due and in arrears.

Upon a trial of the cause, judgment was rendered in favor of the plaintiff for $4,000. To that judgment the defendants obtained a writ of error which is now to be disposed of. Many errors are assigned to the action of the trial court, but in the view we take of the case it will be unnecessary for us to dispose of all of them in detail.

The first assignment of error is that the trial court erred in admitting in evidence the records in the action of unlawful detainer brought for the recovery of the leased premises, for the rent of which the distress warrant was sued out. The parties to the writs of unlawful detainer and the parties to the action of trespass were the same. The records in the unlawful detainer cases were objected to when offered in evidence, but the objections were overruled and the records admitted. Afterwards, the court instructed the jury that they could not consider these records as evidence in fixing the damages in the case, but that they could consider them in determining the question whether or not any rent was due when the distress warrant was levied. Admitting, as is contended by the counsel for the defendant in error, that the question whether or not any rent was due at the time each of the actions of unlawful detainer was instituted was in issue in those cases, still those records were inadmissible as evidence in this case.

In order that a judgment may be evidence against a party in another suit upon a different cause of action, it must be rendered in a proceeding between the same parties or their privies, and the point must be involved in both cases, and must have been determined upon its merits. If the first action is disposed of upon any ground that does not go to its merits, the judgment rendered will not conclude the party. 7 Fob. Pr. 190; Bigelow on Estoppel, 38-39; and Black on Judgments, secs. 50é to 506.

The first of these actions of unlawful detainer was instituted in December, 1890. The distress warrant was taken out in March, 1891.

Although the parties do not agree as to the terms of the lease, there is no question that it was for at least one year, beginning in June, 1890, and that the rent was payable monthly in advance. The determination of the unlawful detainer case brought in December, 1890, admitting that the question, whether or not any rent was then due was involved in that case, could not possibly determine, or be evidence as to the question whether or not any rent was due in March, 1891, nearly three months afterwards, when by the terms of the lease the rents became due monthly during that period.

The second action of unlawful detainer was instituted in May, 1891, and was dismissed before the appearance of the defendants. There was no disposition of it upon its merits. By it nothing was determined or concluded between the parties.

These records were therefoie clearly inadmissible in evidence for the purpose for which the court allowed them to be introduced, or for any other purpose, and for such error the judgment complained of will have to be reversed.

Another assignment of error is that the damages assessed by the jury weie excessive.

The determination of that question will require an exami - nation of the declaration, and the character of the damages that could be proved under it.

The action brought was not for maliciously taking out a distress warrant without probable cause, and having it levied upon the plaintiff’s property when there was no rent due, but it was sued out under section 2898 of the Code, which provides that “if property be distrained for any rent not due, or attached for any rent not accruing, or taken under any attachment sued out without good cause, the owner of such property may, in an action against the party suing out the warrant of distress or attachment, recover damages for the wrongful seizure, and also, if the property be sold, for the sale thereof. ’ ’

The declaration alleges that the rent claimed to be due, and for vhich the distress warrant was taken out, was $400; that the property levied on was of the value of $975; that in fact there was no rent due; and that by reason of the taking of the property the plaintiff was obliged to incur, and did incur, great expense, and has been deprived of great gains in his business, and has suffered and sustained great and heavy losses therein.

There are no allegations in the declaration of such facts as would show that the alleged trespass was accompanied by circumstances of aggravation, nor is there the general allegation of alia enormia, under which circumstances of aggravation might be proved as they may when they do not afford a substantial ground of action, but are mere incidents of the trespass complained of. Faulkner v. Anderson, Gilmer, at page 236-7; Peshine v. Shepperson, 17 Gratt. 472-3, 489.

Even if it were true, as contended by counsel for defendant in error, that the warrant of distress, the writs of unlawful detainer, and the threats of breaking up his business, were parts of a scheme to drive the defendant out of business, the frame of the declaration would not allow such facts to be proved to, or be considered by, the jury.

"When a trespass is committed without fraud, malice, oppression, or other special aggravation, (and this alleged trespass must be so treated under the pleadings in the cause), the object of the law is to give compensation for the injury suffered, and damages are restricted to that object. Peshine v. Shepperson, 17 Gratt. at page 484.

Tested by this rule, the damages assessed by the jury were ■ plainly excessive.

As the judgment must be reversed and. a new trial awarded for other errors, it is not necessary and is perhaps best, for us not to go into a detailed statement of the evidence to show that the damages allowed are excessive. It will be sufficient to say that the evidence wholly fails to show that the damages, which were the natural and proximate result of the trespass complained of, amounted to the sum of $4,000, and that the jury in reaching their verdict must have been influenced by the improper evidence admitted, and by the erroneous view that there were aggravating circumstances accompanying the alleged trespass which they had the right to consider.

The plaintiffs instruction Eo. 4, and the defendants’ instruction Eo. 4, which were given, and the defendants’ instructions Eos. 8, 9, 11, and 12, which the court refused to give, all referred to the question whether, under the contract of lease, the cost of the permanent improvements, which the plaintiff was authorized to make, was to be treated as a set-off against the rent, or whether the tenant had the right to appropriate the rent as it became due to the satisfaction and payment of the costs of improvement. The contract of renting was not reduced to writing. The parties differed as to what it was. The plaintiff claimed that he was authorized to make the permanent improvements and pay for them out of the rent as it became due, from month to month. The defendants claimed that the plaintiff was to make the improvements at his own expense if he occupied the leased property more than one year, and if he only occupied it one year, then the defendants were to pay for the improvements.

The plaintiff’s instruction Eo. 4 correctly stated the law if the jury were satisfied that the terms of the contract of lease were as contended for by the plaintiff. On the other hand, the instruction of the defendants numbered 4 was a correct statement of the law, if the jury believed that the terms of the contract were as the defendants claimed.

The court properly gave both instructions, and was right in refusing to give defendants’ instructions Eos. 8, 9,11, and 12.

The court did not en in refusing to give instruction Eo. 10, asked for by the defendant Coon.

Instruction Eo. 1, given for the defendants, correctly stated the law, that the defendants were not, nor was either of them, liable for damages in this case unless they or he, as the case might be, directed cr approved the proceedings had under the distress warrant, or failed to repudiate the proceedings after full knowledge thereof. If defendant Coon desired a separate instruction upon this point, he was entitled to it as he had put in a separate plea, but the instruction he asked for did not state the law correctly, and was properly refused.

Another error assigned is that the court in giving instruction ISTo. 2 for the plaintiff assumed that his business was a' profitable one, instead of leaving that question to the jury.

The language complained of is “Yet the jury may consider the evidence as to what the profits had been for a reasonable time before the levy of the said warrant of distress, in determining the character and extent of the plaintiff’s injury, and the amount of damages, if any, to which the plaintiff is entitled.” If the instruction does not assume that the plaintiff’s business was profitable, it was at least ambiguous, and upon the next trial, if an instruction be requested upon the same point, it should be so framed as to leave the question of whether the business was profitable or not to the jury.

The assignment of error that the verdict of the jury did not respond to all the issues in the cause cannot be sustained. There was only one issue submitted to the jury, and that was whether the defendants were guilty of the trespass alleged in the declaration.

The trespass was alleged to have been committed by them jointly. Whether they pleaded jointly or separately that they were not guilty did not change the issue. If the jury found all guilty, as they did, the verdict was sufficient as they found it, viz: “We, the jury, find for the plaintiff, and assess his damages at $1,000.” If they had found that any of the defendants were guilty, the verdict should have been for the plaintiff, and damages assessed against those who wrere so found, and in favor of such defendant or defendants as were found not guilty. 2 Tuck. Com. 92.

The authority given by the defendants to the Fidelity Trust Company, as its agent, “to receive tenants for, receive rents, make contracts for (and pay off same), repairs to and insurance upon said building, provided that the said company shall not lease said building or any part thereof for more than one year without first obtaining the consent of the majority of the owners in interest, ’ ’ did not authorize that company to take out the distress warrant and have it levied upon the plaintiff’s property. Mechem on Agency, sec. 386.

The defendants’ instruction hlo. 1, as. given by the court, correctly stated the law as to what was necessary to make the defendants, or either of them, responsible for the taking out of the distress warrant by the Fidelity Trust Company.

Whether the contract of lease between the plaintiff and the defendants was for one year or for five years, it is not material in determining what, if any, damages, the plaintiff is entitled to in this case, and as the question involved is an important one, and it is not necessary to decide it in order to dispose of this case, we express no opinion upon it.

Without expressing an opinion upon other questions discussed in the petition and briefs of the plaintiffs in error, and which may not arise upon another trial, the judgment must be reversed, the verdict set aside, and a new trial awarded to be had in accordance with this opinion.

Reversed.