Opinion
No. 35456.
December 29, 1943.
1. LANDLORD AND TENANT.
Tenant's right of action for wrongful eviction accrued immediately upon his wrongful ejectment, though lease had several more years to run.
2. APPEAL AND ERROR.
Where landlord did not ask for a peremptory instruction in tenant's action for wrongful eviction, Supreme Court could not adjudge that, under the facts disclosed by record landlord was entitled to retake possession of leased premises, thereby putting trial court in error on questions that it was not asked to pass upon.
3. LANDLORD AND TENANT.
In tenant's action for wrongful eviction, whether landlord under alleged agreement with tenant was entitled to repossess and cultivate leased premises, because tenant had made no preparation for producing crops thereon, during ensuing year, was for jury.
4. LANDLORD AND TENANT.
In tenant's action for wrongful eviction, evidence sustained verdict for tenant on question of landlord's right under alleged agreement with tenant to repossess and cultivate land because of tenant's failure to make preparations for producing crops thereon during ensuing year.
5. APPEAL AND ERROR. Landlord and tenant.
Where landlord claimed repossession of leased premises was proper under agreement with tenant because of tenant's failure to prepare to cultivate land, instruction that, if landlord wrongfully evicted tenant, damages should be awarded in such amount as jury might find from the evidence tenant had sustained, not in excess of amount sued for, was reversible error for failure to limit damages to such as proximately flowed from eviction.
6. LANDLORD AND TENANT.
Where landlord claimed that under agreement with tenant repossession of leased premises was proper because of tenant's failure to prepare to cultivate land, tenant could not recover punitive damages for wrongful eviction.
APPEAL from circuit court of Sunflower county, HON. S.F. DAVIS, Judge.
H. Lee Herring, of Rulesville, and Cooper Thomas, of Indianola, for appellant.
A farm landlord having no security for his rent except the crop, who finds his tenant unable to cultivate the crop, has the right to proceed with the cultivation, provided he does so without the use of force or violence.
Gardner v. Heflin, 188 Miss. 790, 196 So. 256; La Rose v. Porter (N.H.), 177 A. 297.
A tenant electing to sue in tort for breach of a contract is limited to tort damages.
25 C.J.S. 499, Secs. 32, 33; 25 C.J.S. 502, Sec. 34.
The landlord had the right to consider the contract rescinded.
13 C.J. 657, Sec. 733; 17 C.J.S. 906, Sec. 422.
Even if such dispossession was unlawful, which is denied, such dispossession was temporary. It had no relation to 1943, or 1944, or 1945. Therefore, any loss of profits for those future years was not a proper element of damages in this suit.
Vicksburg M.R. Co. v. Ragsdale, 46 Miss. 458; Yazoo M.V.R. Co. v. Williams, 114 Miss. 236, 74 So. 835; Mississippi Power Co. v. Cochran, 167 Miss. 705, 147 So. 473; Montgomery Ward Co. v. Hutchinson, 173 Miss. 701, 159 So. 862.
The suit filed in August, 1942 was premature, said suit being one to recover damages in the nature of the loss of profits on the crops on the lands in that very year.
Upton v. Adcock, 145 Miss. 372, 110 So. 774.
Future damages for tort are not recoverable where successive actions may be maintained.
25 C.J.S. 497, Sec. 29.
Instruction number two given for the plaintiff was erroneous and highly prejudicial.
Johnson Allen, of Indianola, for appellee.
The rule that damages which are uncertain or contingent cannot be recovered does not apply to an uncertainty as to the value of the benefit or gain to be derived from performance, but to an uncertainty or contingency as to whether any such gain or benefit would be derived at all. In the case at bar, there was no uncertainty as to the damage at the time and long before the institution of the suit.
Beach v. Johnson, 102 Miss. 419, 59 So. 800; Blagen v. Thompson, 23 Or. 239, 31 P. 647, 18 L.R.A. 315.
Counsel argue that the appellee should have waited and sued at the end of each year, but it is elementary law that the cause of action accrued as soon as the tort was committed, that is, as soon as the appellee was wrongfully and unlawfully evicted by the appellant. The appellee had a right of action immediately upon his eviction and did not have to wait any particular length of time to bring the suit.
A review of the record will disclose that the facts of this case are vastly different from the facts in the case of Gardner v. Heflin, 188 Miss. 790, 196 So. 256, and a comparison of instruction number two will show that it is entirely different from the condemned instruction in the Gardner case, and that the vice of the instruction in that case does not exist in instruction number two for plaintiff.
Argued orally by Forrest G. Cooper, for appellant, and by P.W. Allen, for appellee.
Park, in this tort action, seeks to recover from Aldridge damages resulting from the wrongful dispossession of Park by Aldridge from 300 acres of land which Park had leased from Aldridge. There was a jury verdict and judgment for $3,000 in favor of Park, from which Aldridge appeals.
The lease was in writing. It was for five years including 1941 to 1945. The amount of the rent was $1,500 per annum payable November 1st of each year.
It is claimed that the ejectment of Park occurred January 30, 1942. This suit was filed August 7, 1942.
The first contention of appellant is that the suit was prematurely brought. He raised that question in the lower court by a plea in abatement, which the court overruled. Appellant assigns this as error. The lower court was correct. The right of action accrued to Park immediately upon his wrongful ejection from the premises. The time of instituting the action has bearing upon his ability to prove with certainty subsequently accruing damages but does not affect his right to bring his action at any time after the wrong occurred before such right is barred by the statute of limitation.
Appellant next earnestly insists that we should enter a judgment here adjudging that Aldridge had the right to retake possession of the premises and that he exercised it in a proper manner under the facts disclosed by this record. On this question Aldridge contended that Park had made no preparations for cultivating the land and producing crops thereon in 1942, and also that he and Park had an agreement for Aldridge to repossess and cultivate the farm and each would release and satisfy all claims against the other. Appellant did not ask for a peremptory instruction. This would deny us the right in this case to sustain appellee's contention in this respect. We could not put the lower court in error upon these questions when it was not asked to pass upon them. But pretermitting that and without detailing the evidence, we will say that we have reviewed it carefully and we think these were properly questions of fact for the jury to decide, which it did upon instructions requested by and granted to the appellant. The verdict of the jury was adverse to appellant's contention and there is ample proof in the record to support that verdict. Gardner v. Heflin, 188 Miss. 790, 196 So. 256, 257.
It is next contended by appellant that the case should be reversed and remanded because of the granting by the lower court of the following instruction to appellee-plaintiff: "The court instructs the jury that if you believe from the preponderance of the evidence that C.H. Aldridge, the defendant, after having entered into the contract here in evidence for a period of five years with J.A. Park, the plaintiff, without fault on the part of the said Park, wrongfully entered into and upon said premises and took possession thereof and then and there wrongfully evicted, expelled and removed the said Park from the possession, use, occupation and enjoyment of the said leased premises, whereby the plaintiff has been denied the use thereof, then you shall return a verdict for the said Park for whatever damage you may find from the evidence he has sustained thereby, not in excess of the amount sued for." This same instruction in substance was condemned in the Gardner case, supra. The court in that case said: "The instruction granted by the court, under these circumstances, was fatally erroneous. It left the door wide open for the jury to assess any damages that it saw fit. The jury was not limited to such damages as naturally flowed from an eviction and repossession of a dwelling in the manner indicated in the statement of facts. There is no theory upon which the instruction could be justified on the facts of this case. Of course, the jury should have been limited to such damages as proximately flowed from the eviction in the manner we have detailed . . . At least, the jury should have been limited to those damages which were proximately caused by the eviction." That statement is applicable to the facts of this case.
We would affirm the judgment on the question of damage, conditioned upon a remittitur of $1,500, the amount of the 1942 rent owing to Aldridge, but for the fact that the proof of damage is not sufficiently specific and definite for us to do that. This is not a case for punitive damages. This means that the case should be reversed and remanded for the ascertainment of damages only. It is so ordered.
Affirmed in part, reversed in part, and remanded.