Dailey v. Grimes

27 Md. 440, 1868 Md. LEXIS 2

• Court: Court of Appeals of Maryland
• Decided: July 15, 1868
• Status: Published

Opinion

"WetseIi, J.,

delivered the opinion of this Court.

The appellee was plaintiff below. He sued the appellants in the Circuit Court for Allegany County, and declared that he being engaged in farming, and having .provided himself with the necessary implements of husbandry, and with all the necessary stock of horses, cattle, &c., for carrying on said business successfully and profitably, and,having produced a large quantity of wheat, rye, oats, hay and buckwheat, for the use of his family, and for feed and provender for his stock, the defendant’s, on the 25th of January, 1864, with force and arms, unlawfully seized, took, and carried away, all the said wheat, rye, oats, buckwheat and hay, of the plaintiff, by which means he was greatly injured and damaged, and was thereby compelled to abandon the business of farming, and to sell his horses, cows, sheep, hogs and other stock, and his farming utensils and household property, at a great sacrifice. To which the general issue plea of “Not Gruilty” was put in. The verdict being for the plaintiff, the defendants appealed.

In the progress of the trial the defendants took five exceptions to the introduction of proof.

The first was to the admissibility of the proof of Nathan Casteel, a witness for the plaintiff, who, after proving the taking by the defendants of the hay, rye and oats, proceeded to state, subject to exceptions, his knowledge of the number, quality and value of the plaintiff’s stock, his condition after the taking of the hay, rye and oats ; the scarcity and high price of such food in theneighborhood; and the sale, by the plaintiff, at public sale of his stock, and the prices which it brought, and the terms of sale. He also testified as to the defendant Hailey’s previously expressed purpose to haul away the hay.

Similar testimony was offered by Merrill and Smouze, and taken, subject to exceptions, which was ruled in as admissible, and formed the subject of the defendants’ second exception.

We think that this testimony was admissible under the issue. It was liable to be rebutted by the defendants, who also put in proof their proceedings under a distress warrant, which, if regular, would have the effect of destroying the tendency of the proof to increase the damages, for which purpose it was offered by the plaintiff. The Court below was therefore right in admitting the testimony in the first and second exceptions.

The plaintiff and defendants having both completed their testimony and rested, and the defendant Dailey, one of the defendants’ witnesses, having stated on his cross-examination that he had his cows in one little lot on the farm, by Grimes the plaintiff’s permission, the lot containing two or three acres, after the sale of the farm, and after the plaintiff had agreed to give up its possession to the purchaser ; and that he never authorized his cattle to be turned into the fields above the road, the plaintiff then offered to prove by James Danby that .he saw Dailey’s cows repeatedly driven by Dailey’s boy and put into the meadow above the road ; that he saw Dailey on several Sundays do the same thing, commencing in October, 1863 ; the field into which he turned them was above the road, and was the main meadow, and was not the little patch of two or three acres below the road.

Dailey was the agent of Harness in the purchase of the farm, and one purpose for which this proof was offered was to show that Grimes had surrendered the possession of the farm, and was not the tenant of Harness or liable to distress for rent. The defendants objected to its admissibility, but the Court, permitting it to go in,, they excepted, and this constituted their third exception.

In our opinion the Court committed no error in admitting this proof; Besides its tendency to show a surrender, it was admissible to contradict the jxroof of Dailey referred to.

To rebut the liability to the distress for rent the plaintiff then proved by Armstrong, to whom he had been tenant of the premises,, that the consideration for the letting wás the making of improvements on the fa.rm in place of rents, with something more to pay taxes; and that he continued in possession under this arrangement, and during the time he was in possession he made improvements equal in value to the rent, and furnished besides some produce to cover the taxes; that this bargain was made in the spring of 1851, 1858 or 1859. He then proved by Nathan Casteel, a neighbor, a farmer and a renter of farms in the neighborhood, the condition of the farm since 1851, and the improvements made by the plaintiff, which he considered of more value than a reasonable rent. The witness was then asked by the plaintiff whether, in Ms judgment, the improvements made by Grimes from 1851 to Septembei’, 1863, were a proper equivalent for a fair rent, to which he answered that he thought they were. This last question and answer were objected to by the defendants ; but the Court overruled the objection and permitted the answer to be given in evidence. To this the fourth exception was taken. " •

If the question were propounded without reference to any contract, and as a mere independent inquiry, it would have been immaterial and impertinent, and should have been rejected as accomplishing no purpose'under the issue. But, in this light, it would form no ground for reversal,-as it cannot be perceived how it could have influenced the jury in their verdict. 9 Gill, 131. But the same hind of testimony was in already hy this witness and by Armstrong, without objections; and if the point of the objection was to the judgment of the witness, which is our understanding of the question and answer, we think he could, as a farmer in the neighborhood, and having knowledge of the improvements, speak as to their value. He was not called upon as a mere expert for his opinion upon a theoretical state of facts, hut for his judgment of the value of matters within his knowledge and under his observation, and on which he was competent from his occupation and residence to form an opinion. In this view the testimony was admissible.

The fifth exception was taken to the admission of proof after the prayers had been submitted on both sides and the argument thereon nearly concluded. The Court allowed it under the 54th rule of Court, which invests it with a discretion in such cases. The witnesses had been retained for the purpose by the plaintiff, and the defendants notified of the fact and of the nature of the proof to be offered, which was rebutting. In this state of the case, and under the rule, the Court had a discretion to permit the evidence to be given, and the exercise of it is no ground of appeal.

The sixth exception, also taken by the defendants, was to the rulings of the Court upon the prayers, and to these we will now address ourselves. A review of the material parts of the testimony is necessary on this branch of the case.

Armstrong, the landlord of the plaintiff below, suffered judgment against him in January, 1862, on which a fi. fa. was issued returnable to January Term, 1863. The land, in possession of the plaintiff as tenant, was sold under the fi. fa. by the sheriff on the 5th of September, 1863, to Charles E. Harness, Dailey'j one of the defendants, being his agent at the time, and making the purchase for him. Shortly after the sale, Dailey went to Grimes, the tenant, “ and asked him what portion of the crop he would give Mr. Harness — he said, one third of the crop then on the ground." When the potatoes were dug, Harness received his share of them. Some weeks after the above interview, another took place between the witness Dailey and Grimes, when the latter said, ‘ he did not intend to give Harness any part of the crop the precise time not recollected ; but it was before he sent him a written demand for the possession. When this demand was made, about January, 1864, (as proved by another witness, Smouze,) Grimes agreed to give up possession; he had left the house before that, as unfit to live in, but his stock was still there, and remained there until the 13th February, 1864, when it was sold, but the witness did not know at what time he was to give up possession of the farm, but Grimes said in answer to the demand, there should be no trouble ; that he would give up possession. Grimes had raised some potatoes, some wheat, and some buckwheat that year. All the crop on the ground had been cut and gathered before the 5th Septeniber, 1863, the date of the sheriff’s sale, the buckwheat and potatoes afterwards. The defendants below then gave in evidence the proceedings in distress for rent by Harness upon an account, dated January, 22d, 1864, for one year’s rent, being one third of the crop due and in arrear for the farm occupied by Grimes and belonging to said Harness in Allegany county, Md. Under the warrant the crop was taken, appraised and sold, which is the taking, &c., complained of in the declaration. The rebutting testimony by Armstrong as to the nature and terms of the tenancy, and by other witnesses, has been sufficiently stated already in considering the other exceptions.

The term, it seems then, under which Grimes held the premises under Armstrong expired on the 1st of April, 1864. . Such was Armstrong’s proof, and at that period lie liad received notice to quit. Whatever rent became payable or accrued after the 5th of September, 1863, the purchaser, as assignee in law, became entitled to, if the possession was not surrendered to him. Martin vs. Martin, 7 Md. Rep., 376. The theory of the plaintiff’s case was that the rents reserved by Armstrong were in improvements to be made at any time during the lease, that these had all been made satisfactory to the landlord and prior to the date of the sheriff’s sale, together with payments for the taxes, and if any improvements remained to be made, still the same could not be distrained for as payable in kind. The first, fourth and sixth of the plaintiff’s prayers were based upon this aspect of the case, and they were properly granted.

Another hypothesis of the plaintiff’s case was that the possession of the land had been surrendered to the purchaser, and if so he could not maintain his distress, and with that view the fifth prayer of the plaintiff was offered, which we think was also correctly granted.

Still the case presented another aspect, and to meet that the second and eighth prayers of the plaintiff were submitted ; and that was whether a new agreement for occupation took place between the tenant and the purchaser. This rested upon the testimony of Dailey as to the interviews he had with Grimes after the sale by the sheriff, in which the latter promised to pay one third of the crop on the groimd. On this in fact the proceedings by distress were grounded. An examination of the proof on this point must satisfy any mind of its utter vagueness and insufficiency to establish such a contract as would sustain such a proceeding. Eo time is specified when the term was to expire, when the rent was to accrue, or whether it was for past or future occupation. Even if the language of the Code (Art. 53, sec. 8, et seq.,) which authorizes a distress for rent reserved in grain or produce, will admit of the interpretation which is applied, or attempted to be applied, as in this case, to grain already severed, and not to crops to be raised after the commencement of the tenancy on the premises, still the other terms proved by the witness are too vague and indefinite to constitute a renting, which would authorize the remedy by distress, or justify the statement of the account which the purchaser exhibited as the foundation of his proceeding. These prayers were therefore properly granted.

The eighth prayer was excepted to on the ground that it put a question of law to the jury. The plaintiff asked for an instruction, on the ground that the contract was void for want of consideration, and therefore the defendant’s remedy by distress would fail on that ground. But the Court has already said that if the agreement were in this respect good, yet in all other respects it was vague, indefinite, and inoperative for this purpose. The instruction, therefore, as given was immaterial, and could work no injury to the defendants, and its reversal would confer no benefit on them.

The seventh prayer was conceded in the argument to be unobjectionable. We think also the jury was properly instructed under the third prayer, upon the question of damages.

The defendants offered ten prayers, two of which, the second and seventh, were granted by the Court, and the others refused. The second does not appear in the record, from loss or otherwise, and the Court cannot see or know what it contained.

What has already fallen from the Court in reference to the plaintiff’s prayers, and also upon the subject of the conversations between Dailey and Grimes about the renting, and of their insufficiency as a contract to sustain the proceedings by distress, will dispose of the first, third, ■fourth, fifth, sixth and ténth prayers of the defendants, as they all go upon the right to distrain, and the justification, by that means, of the taking. They were therefore properly rejected.

(Decided 15th July, 1868.)

The eighth and ninth prayers assert that the contract between Harness (through Hailey) and Grimes about one third of the crop on the ground as rent for the farm, if established to the satisfaction of the jury, created a joint ownership, or tenancy in common, between them of the crop, and that therefore this action could not be maintained ; and to sustain this position the case of Ferrall vs. Kent, 4 Gill, 209, is relied upon. That was an action of replevin. And without determining upon the authority of that case whether a tenancy in common did exist in the case under consideration, if the facts were found as stated ; but conceding such to be the law of that case, yet in this case the plaintiff was in possession of the crop, and in the absence of all proof express, or of usage, when the rent was payable, was entitled to the possession at all events to the expiration of the lease, which was the 1st of April, 1864 ; after the bringing of the suit, the plaintiff was clearly entitled to maintain trespass. “Unless a plea in abatement is interposed, a tenant in common may recover in trover or trespass his aliquot share or proportion of interest in a chattel, but the rule that give's him the right to sue, confines him to his own interest or share.” Harker vs. Dement, 9 Gill, 15. So that under the circumstances, if a joint owner, he could maintain the action ; though the measure of his damages might vary according to circumstances. But that is not a question under these prayers. His right to maintain the action is controverted by them, and this right, we have shown, was his. The prayers were therefore properly rejected.

We have thus passed upon all the exceptions, and finding no error in the rulings of the Court below, the judg* ment will be affirmed. .

Judgment affirmed.