Van Werden v. Winslow

Grant, C. J. (after stating the facts). 1. Error is assigned upon the refusal of the court to direct a verdict for the defendant. The record does not contain all the testimony, and therefore this assignment cannot be considered. 2. The court erred in refusing to instruct the jury, as requested, that plaintiff could not in any event recover to exceed the value of the celery less the amount due for rent. Counsel for plaintiff concede this to be the rule in actions for trover under the like.circumstances. The declaration charges conversion as well as trespass. Defendant had a right to enter and take possession under his mortgage. We find nothing upon the record to show that he did not lawfully enter. It quite conclusively appears, even from plaintiff’s own testimony, that defendant, in removing the earth, was taking a proper course to protect the property from injury. A conversion being charged, we think that the request should have been given. Brink v. [567] Freoff, 40 Mich. 610; Rall v. Cook, 77 Mich. 681; 5 Am. & Eng. Enc. Law (2d Ed.), 998. Whether plaintiff could avoid this rule by an action quare clausum fregit, —quaere. 3. Defendant was not responsible for any injury or loss to the celery upon the one-acre piece, which he did not touch, and the jury should have been so instructed. 4. The court erred in rejecting the testimony of skilled celery growers that it was customary and proper to open the trenches in warm weather, in order to prevent the celery from heating. If defendant was in possession under his chattel mortgage, it was his duty to use reasonable care in protecting the property; and, if he exercised such reasonable care, he was not liable for any loss. Jones, Chat. Mortg. (4th Ed.) § 697; 5 Am. & Eng. Enc. Law (2d Ed.), 1006. 5. Defendant urges that the injury resulted from plaintiff’s own fault in ordering defendant’s employés away, and then leaving the celery without any protection or care. Since this question may arise upon a new trial, we will dispose of it. The jury should have been instructed that if defendant took possession under his chattel mortgage, and placed these men in charge, and plaintiff ordered them away after the trenches were opened, and then neglected to take proper care of the celery, he cannot recover. This would permit him to take advantage of his own wrong. Judgment reversed, and a new trial ordered. The other Justices concurred.