Griffin v. Martel

Rowell, C. J. This is trespass for breaking and entering the plaintiff’s drug store, and forcibly and with strong hand expelling him therefrom', and for assaulting him, with a count in trespass de bonis for taking and carrying away his goods found therein, and a count in trover for the same goods. The court charged that at the time in question the store, which was the property of Martel, was in the complete, actual possession of the plaintiff, who had entered it some time before as lessee or under some lessee, and had since remained there with his stock and fixtures, and was then personally in the building. And this was true, unless the plaintiff had surrendered possession to Martel by delivering to him the key of the store, as defendants claimed. On this point the defendants’ evidence tended to show that the plaintiff, not having • paid his rent as agreed, surrendered possession by delivering the key to Martel, who [25] thereupon leased the store to another party; that after that, plaintiff put on a new lock, and slept in the store nights, and kept the door locked so Martel could not get in with the key he had. The exceptions expressly state that the testimony on the part of the defendants tended to show that from the time of the delivery of the key to Martel, the plaintiff was in the store, holding it against Martel, and the defendants claimed that he was a mere intruder and trespasser, and had no right there, as he had surrendered possession. The plaintiff admitted that he gave the key toi Martel, but said it was not in surrender; that he continued in possession, and changed the lock because Martel refused to let him have the key again. The defendants claim that the court erred in not submitting the question of surrender to the jury. But that was not error, for the defendants’ testimony did not tend to show that Martel had such a possession as entitled him to expel the •plaintiff with force. In order to do that, he must have had actual, peaceable possession, so that he stood in the attitude of defending his own possession, and not of invading the plaintiff’s possession. Whittaker v. Perry, 38 Vt. 105. But he stood in no such attitude, for the delivery of the key gave him, at most, only a symbolical possession, not the actual possession, for that continued in the plaintiff, as the testimony on both sides showed. No general verdict was submitted, but only special findings returned, which, the defendants claim, do not alone warrant a judgment for the plaintiff, for that the defendants were there to assist their officer to replevy a stove that was in the basement of the store; that the entry was peaceable, no assault being made in effecting it, and for which damage is not claimed, nor for the detention; that as the door ,was [26] Martel’s, he had a right to break it, the plaintiff not interfering, though the officers did not authorize it; that having, entered peaceably, the defendants had a right to remain, and if, in order to do- so; it became necessary to assault the-plaintiff, it matters not that they committed the first assault, as their testimony tended to show that they used no more-force than was necessary to protect themselves from bodily harm. As to the writ of replevin, the defendants not having justified under it in their pleadings, cannot avail themselves-of it to make their entry lawful. Briggs v. Mason, 31 Vt. 433; Mack v. Kelsey, 61 Vt. 399, 17 Atl. 780; Poole v. Massachusetts etc., Association, 75 Vt. 85, 53 Atl. 331. Nor was their entry peaceable within the meaning of the law, though made without assaulting the plaintiff, for it was an invasion of his possession with force and strong hand, which the statute forbids, and the question of title and right of possession is unimportant. And being in as they were, they had no right to- remain, and consequently no- right to assault the plaintiff in order to remain, but were bound to depart, and leave the plaintiff in his former state, and then they could have proceeded legally to get possession. Dustin v. Cowdry, 23 Vt. 631, 638. The defendants claim that there was no conversion of the goods, for that the talcing was in recognition of the plaintiff’s right, with no -intention of depriving him- of that right for any length of time whatever. But it is not necessary to decide-that question, for there certainly was a trespass, the jury having found that the goods were taken and carried away without the plaintiff’s consent, for there was an unlawful invasion by force of his possession of them. After verdict and before judgment the defendants moved for an order for a return of the goods in mitigation of dam [27] ages for their taking to a nominal sum. The court overruled the motion as matter of law-, and that was right; for the plaintiff claimed on trial, and his testimony tended to show, that the goods were carelessly and negligently removed by the defendants and thereby greatly damaged, and so', of course, the court could not make the plaintiff take them back with that question undetermined, for that would have deprived him, on the basis of his claim and testimony, of full compensation for the damage caused by the unlawful taking. The case stood in this regard as it would had it appeared that the goods were in fact essentially injured, in which case, no return could have been ordered. Hart v. Skinner, 16 Vt. 138; Rutland & Washington R. R. Co. v. Bank of Middle-bury, 32 Vt. 639. In Moon v. Raphael, 2 Bing. N. C. 310, Tindall, C. J., said that had the defendants asked for a stay of proceedings in return of the goods, the plaintiffs would not have been compelled to receive them unless they were in the same plight as when taken and no injury had accrued to the plaintiff. It is unnecessary to consider whether the taking was so wilful as to disentitle the defendants to an order for a return. There was no error in the admission nor in the exclusion of evidence. The cost of the goods was some evidence of present value. Crompton v. Valido Marble Co. 60 Vt. 291, 301, 15 Atl. 153. So in ascertaining the present value of a railroad in order to- determine the reasonableness of rates,, the original cost of the property is to be considered. Smyth v. Ames, 169 U. S., pp. 546, 547, L. Ed. p. 849. Remoteness is suggested, because the goods were bought “years before.” But that does not appear. Besides, the question of remoteness will not ordinarily be revised here. The plaintiff’s motive in holding possession being im- , material, it was proper to exclude the cross-question put [28] to him whether he did not exact a money consideration of the defendants for the privilege of coming in. Allowing the plaintiff to show the value of his goods sixteen months before the taking, when they were moved into the store, was proper as against the objection now made that they were transitory and had been depleted, for the plaintiff’s testimony tended to show that they remained “substantially the same” from that time till the time of the taking. This is like showing the insufficiency of a highway at the time of an accident by showing its insufficiency at a former time, if its condition remained the same. Cheney v. Ryegate, 55 Vt. 499. Judgment affirmed,, with interest on the dannages during stay of execution, amd additional costs.