Slay v. Milton

Delany, J. Com. App. When the defendant brought forward his plea in reconvention, claiming damages for the wrongful issuance of the distress warrant, the plaintiff excepted to it on the ground that such a plea was inadmissible in this action. He insisted below, and he contends in this court, that the defendant’s sole remedy for damages was upon the land, and that he could not be heard upon that until after the termination of the present suit. And he refers us to article 3113, R. S., which, after providing for the bond to be given by the plaintiff in the case, concludes with these words: “ Which bond shall be filed among the papers of the cause, and in [425] case the suit shall be finally decided in favor of the defendant, he may bring suit against the plaintiff and his sureties on such bond, and shall recover such damages as may be awarded to him by the proper tribunal.” We cannot concur in the views of this statute expressed by appellant, and in our opinion the court did not err in overruling the exception. One of the vital questions to be determined in the case was, when the defendant’s account with the plaintiff became due. The plaintiff insisted that it became due on October 1st, while the defendant asserted that it was not due until the 1st of the following January. There was nothing in the contract to determine when the account was to be paid; and evidence was introduced to show the custom of the merchants and people of the neighborhood in this respect. Mo objection was made to the evidence, but the appellant, in his third assignment of error, objects to a portion of the charge upon this subject. Taking the charge upon this part of the case as a whole, it was favorable for the plaintiff. We see nothing in it likely to have misled the jury. It is evident that the jury did not concur in the plaintiff’s claim as to the date of the maturity of the account. We are not surprised that they did not. And it is worth while to consider what might have been the consequences to the defendant if the plaintiff’s theory of the case had been maintained. Part of the account was for rent, and the rent was, by the plaintiff’s own statement of the case, payable in kind. It could not, therefore, be paid until the crop was gathered. That part of the account which consisted of advances must needs be paid out of the crop; for the tenant had no other means of payment. It could not, therefore, be paid until the crop was gathered, and, of course, could not have been paid by the 1st of October. Let us suppose, then, that the defendant had made an express agreement with the plaintiff that the rents and advances should be payable on the 1st day of October. Of course he could not have complied with his contract; for on that day his corn and cotton were still in the field ungathered. On the next day the plaintiff might lawfully have seized his entire crop. For the statute (R. S., art. 3112) provides that, “ when any rent or advances shall become due, or the tenant shall be about to move from such leased or rented premises, or to remove his property from such premises,” in either one of these events the landlord may apply to a justice of the peace for a warrant and seize the crop. What is the tenant’s remedy? The plaintiff in this case assures us that the sole remedy is upon the bond which the landlord must execute in order to procure the [426] writ. Let us notice the conditions of the bond. It will be found in article 3113, R. S., and is in these words: “ Conditioned that the plaintiff will pay the defendant such damages as he may sustain in case such warrant has been illegally and unjustly sued out.” It has been held that these two words “ illegally ” and “ unjustly ” do not mean the same thing, and that they must both be found in the bond or the warrant will be quashed. Riggins v. Ford, Austin term, 1882, 1 Law Rep., p. 354. It is therefore only when the warrant has been both illegally and unjustly sued out that the defendant can recover upon the bond. Flewellen v. Pace, 2 Law Rev., 363. And the ruling would probably be the same upon his plea in reconvention. But if the account be due, the suing out would not be illegal; and no matter how grossly unjust it might be, or how utterly ruinous to the tenant, he would be without remedy as the law now stands. It will not probably be thought out of place, therefore, if we should suggest the propriety of a change in the phraseology of the statute. Certainly nothing should justify the resort to this stringent remedy by the landlord except the necessity of protecting himself against the improper conduct of the tenant. We will consider only one more question, which is, whether the damages were excessive. It must be admitted that they were liberal — so much so as to awaken the closest scrutiny into the facts of the case. The verdict was for actual damages, which must have relation to the value of the property taken. The estimates of the different witnesses differ§d widely as to the value of the crop; but they all agreed that it would take nearly half the cotton, in value, to prepare it for the market. Estimated in this way, we hardly think that the value comes up to the award made to the defendant. But there is one view of the case which the jury, no doubt, considered ; and that is, that the defendant had a very large family, almost all of whom were cotton pickers. Using, therefore, the labor of his own household, he could gather his crop with but slight expense, and thus realize well nigh its full value. Of this advantage he was deprived by the action of the plaintiff. Viewed in this light, the verdict does not seem so excessive. There is also another feature of this case which could hardly be overlooked by either court or jury. Throughout the entire record there is no evidence of any necessity for the issuance of the distress warrant. There seems to have been no probability that the defendant would fail to pay. He had shown no inclination to avoid payment. In fact the only motive for the issuance of the warrant which is [427] suggested in the record (and it is not denied) was that the defendant had ceased to trade with the plaintiff, who was a merchant, and had transferred his business to another house. Thus the proceeding appeared like a cold and cruel exercise by the plaintiff of what he perhaps thought a legal right, regardless of the loss and ruin which he was inflicting upon the defendant. In such a state of facts the jury probably thought (and the courts are strongly inclined to the same opinion) that, “ for losses and trouble of these descriptions, the . . . defendant should be liberally remunerated.” Drake on Attach., sec. 175. Appellee concedes to appellant the sum of money for which the property was sold under the order of the judge. Without further discussion, we conclude that the judgment should be affirmed. Affirmed. [Opinion adopted June 24, 1884.]