Warner v. Hoisington

The opinion of the court was delivered by Steele, J. The defendant acquired, by his contract with the plaintiff, only a naked right to enter upon the plaintiff’s field for [97] the purpose of raising' and harvesting a single crop upon shares. This does not amount to a lease of the land. Bishop v. Doty, 1 Vt., 40. It did not divest the plaintiff of the legal possession of the field any more than would a contract to permit the defendant to enter upon the field and dig and remove stone, or cut and draw awaywood or timber. The relation of landlord and tenant is not created. The defendant does not obtain an estate in the land, but does acquire a right and authority to enter upon it for the purposes of carrying out his contract. By the terms of this contract, the plaintiff’s share of the corn was to be severed from the defendant’s, in the field, and stooked by itself; and after it was thus stooked, the defendant was to have nothing more to do with it,- the plaintiff taking it in the field. This having been done, the defendant’s authority to enter upon that portion of the field, in which he had put the plaintiff’s corn, ceased, because all his duties under the contract as to that portion had been executed. The case finds that “ after it was thus divided, the defendant took and carried away from a certain portion of said field all the plaintiff’s share of said corn, thus stooked, set apart and divided.” If we are correct in understanding from the exceptions that the plaintiff’s corn was thus stooked together in one portion of the field, and the defendant’s fetooked together in another, the defendant’s entry upon that portion of the field set apart to the plaintiff was unlawful, and such a breach of the close as -would warrant the action of trespass quare clausum fregit. It is not necessary for the plaintiff to show that the defendant w;as. a trespasser, in crossing the frontier line which bounded his territory. He might have authority to enter the plaintiff’s door yard, and yet be a trespasser in entering his house. This might be so even if it was a case of authority in fact, as distinguished from authority in law, so that abuse of the authority would not constitute him a trespasser ab initio. So, too, he might have authority to enter upon one part of a field and be a trespasser in entering upon another part of the same field. II. But even conceding that the plaintiff’s corn was not stooked in-a separate part of the field, and that he was.guilty of no unlawful entry, the plaintiff was still entitled to recover, [98] The declaration alleges not only a breach of the plaintiff’s close, but also that the defendant then and there “ took and carried away thirty bushels of ears of corn, of the value of eighteen dollars, and converted the same to his own use.” Had the defendant pleaded in justification, as he was bound to do, to be entitled to avail himself of such a right to enter upon the láind as he now relies on, his plea would have been sufficient, if it justified the entry, even though it did not profess to answer or justify the trespass in removing the corn. For, technically, the removal of the corn is but matter of aggravation, and the breach of the close the gist of the action. But the plaintiff would still have been at liberty to new assign and rely on the trespass in taking the corn as a distinct cause of action, and abandon his claim for the entry. Hubbell v. Wheeler, 2 Aiken, 359; Grout v. Knapp, 40 Vt., 163 ; Gould’s Pl., § 110, p. 366. It is said by Gould that any plea which makes a new assignment necessary is an “ evasive plea,” apparently or technically, but not really, avoiding the whole gravamen of the complaint. The new assignment does not substitute a new cause of action, but merely states the original one with more particularity, or assigns as a substantive ground of damages what the declaration has alleged only as aggravation. Gould’s Pl., 457 ; Stephens’s Pl., 227, 228. The purpose of the rule of pleading, which allows the defendant to thus plead evasively, is to enable him to compel the plaintiff to state with distinctness for what he claims to recover. 1 Chit., PL, 660. The defendant having failed to so plead, and relying, under the general issue, upon facts he was bound to plead specially, can not now complain if the plaintiff recovers for the trespass he has distinctly alleged in his declaration, and which he might have new assigned had the defendant pleaded the special matter upon which his defence now rests, as he was bound to do. The judgment of the county court is affirmed.