Gross v. Hays

Stayton, Chief Justice.— Appellant and appellee were together en- gaged in a retail drug business in a house belonging to appellant, the lower story of which was occupied as a drug store and the upper story by -appellee and his wife as a residence, in which was all their household furniture, wearing apparel, and other valuable property. The business seems to have commenced about February, 1882, and continued until August 22, at or before which there was some misunderstanding between them. The entry to the upper story was through the store room, and to the door of this appellant and appellee each kept a key. On August 22 appellee went to Dallas, the place of business being the town of Mesquite, to get legal advice in reference to the settlement of the business between the parties, leaving his wife in the house, but she fearing to remain alone during the night locked the house and spent the night with a neighbor. Appellee returned to the house on the morning ■ of August 23 with his wife, when they found that the lock on the door had been changed and they were unable to enter. There is evidence tending to show that appellant knew of their desire to enter the house while they were there, but that he made no offer to permit them to do so. On September 1, 1882, this action was brought by appellee to recover his property and for damages actual and exemplary for the violation of his right. He caused his property to be sequestrated, and when the upper room, in which it was, was entered by the sheriff it was . found that a trunk had been broken open and therefrom gold coin, legal 1 tender notes, silver certificates, and a check collectable by any one, amounting together to the sum of $132.75, had been taken. It further appeared that fruits in course of preparation for preserving .to the value of $25 had spoiled when the house was opened, and that four [518] mocking birds which were shown to be of the value of ten dollars each had died. There was no controversy as to the ownership of the property in the-upper room, nor as to the value of that lost, and there was a judgment rendered in favor of appellee for a sum less than the estimated value of the things lost, with interest added thereto as actual damages, and a further verdict and judgment for $350 as exemplary damages. The possession of the entire house by appellee was shown to be legal,, and the evidence tends to show that this was in pursuance of a partnership agreement under which the property was to be used for the period of one year. It appeared on the trial that the partnership agreement had not been, signed by both parties, although it had been drawn in. duplicate and. signed by Hays early in the year and one copy given to appellant, who-approved it and promised to sign it. Under this state of facts it must be held that there was no contract in writing, but that there was a parol contract is made clear. On the trial, in connection with the verbal evidence showing the above - facts and the leading terms of the contract, appellee was permitted to-read in evidence the copy signed by himself, which was objected to. It may have been admissible in corroboration of the other evidence as to what the contract between the parties was (Lathrop v. Bramhall, 64-U. Y., 371), about which it seems there was but little controversy as to any matter involved in the issues in this case. If not admissible, we do • not see that it could have operated to the prejudice of appellant. The second assignment of error is that “the court failed to charge the-: jury the law applicable to facts and pleadings in this cause. ” This assignment specifies no particular matter as error and can not be considered. Appellant asked a charge not applicable to the facts of the case, and embracing several legal propositions not correct or as framed misleading. If it had appeared that appellee was occupying the house as a mere: tenant at will the charge would have been incorrect, in that under it the jury would have understood that if such was the relation of the parties-it was the right of appellant to lock the house with the property of - appellee in it and to be bound to no diligence whatever for its preservation. Such a charge was properly refused. The evidence, however, did not tend to show that appellee was a tenant at will or even strictly a tenant at all, but did tend to show a joint-occupancy of the house for the conduct of a business in which they were-both interested, which made it necessary as well as proper for the conduct of the business that appellee should remain there until the business-ceased, and his possession for this purpose of the upper story was to some- . [519] extent exclusive, but in the act of excluding him from that part jointly occupied appellant excluded him from the entire house. The fourth assignment of error is that ‘cthe verdict of the jury is contrary to the evidence and against the evidence.” This assignment is too general to be entitled to consideration. The sixth assignment questions the sufficiency of the pleadings to justify a judgment for exemplary damages. The petition alleges the right of appellee to occupy the house with his property, and alleges that the acts of appellant in depriving him of the possession and retaining his property was willful, illegal, and malicious, and done with intent to vex, harrass, and oppress. If this was true it furnished a cause for exemplary damages. It is urged that the damages awarded are excessive, and that there was no evidence to justify the imposition of exemplary damages. The actual damages allowed are not more than will compensate appellee for property actually lost, and if it was a case for exemplary damages the verdict in that respect can not be said to be excessive. Appellee is shown to have been entitled to the occupancy of the house at the time its doors were closed upon him. This was done without warning, and so far as appears from the evidence without necessity. Possession even of the wearing apparel of appellee and wife was withheld from them, or at least under the control and in the possession of appellant without right. Appellant's action was arbitrary and looked toward oppression. He took the righting of his fancied wrongs into his own hands when the law would have offered him ample and speedy redress had he shown himself entitled to it and applied for it; and we regret to say that his letters written to appellee with his whole course of conduct gave the jury just ground to believe that his conduct may have been moved by malice. The jury evidently so believed. Their finding was approved by the judge who tried the cause, and we do not in view of all the facts feel authorized to hold that grounds for exemplary damages were not shown. There is no error in the judgment and it will be affirmed. Affirmed. Delivered April 16, 1889.