Walsh v. Taylor

Alvey, J., delivered the opinion of the Court. This was an action of trespass by the appellee against the appellant, for breaking and entering the dwelling house of the plaintiff, and making a noise and disturbance therein, and depriving the plaintiff of the use thereof, &e., and to which the defendant pleaded that he did not commit the wrongs alleged. At the trial below, it was proved, on the part of the plaintiff, that she was keeping a boarding-house, and that she purchased of the defendant certain articles of furniture, and paid part of the price at the time, and agreed to pay the balance in weekly instalments of one dollar. That after the entire balance of the purchase money had fallen due, the defendant, having three men with him, entered the plaintiff’s house, and demanded payment of the money due, or a return of the furniture, and the plaintiff being unable to pay the money, and refusing to deliver up the furniture on the defendant’s demand, the latter called in one of his men to take the furniture away, and proceeded up stairs in search of it, and entered the rooms and examined the furniture therein, against the remonstrance of the plaintiff.

That the defendant and those with him, remained on the premises twenty-five or thirty minutes, against the consent of the plaintiff, and while there the defendant indulged in loud and abusive language ; and that he entered the room of the plaintiff’s daughter with such violence as to terrify her. The plaintiff herself stated that her servant opened the front door on the ringing of the bell, when the defendant entered the house, and that he then told her, the plaintiff, ⁵⁹⁶ that he had come to take away the furniture, and she proposed to deliver up one of the articles in payment of che balance due, but that the defendant refused to accede to her proposition. After this evidence on the part of the plaintiff, the defendant then offered in evidence the written contract, signed by both parties, whereby the articles of furniture were- sold, and by such contract it was stipulated and agreed, that the balance of the purchase money for the furniture should be paid in weekly instalments of one dollar, until the whole amount was paid, and that if, before full payment, the plaintiff should part with the possession of the goods, or if there should be default in the payment of any one of the weekly instalments, for three successive weeks, the defendant should have the right to reclaim and take possession of the goods, wherever the same might he found, it being understood that the sale was conditional only, and that, for the retaking possession, the defendant or his agent, should not be subject to any proceeding, criminal or civil. And it was further agreed that all payments of instalments should be regarded as forfeited, upon default by the plaintiff in making the weekly payments, as provided by the contract.

It was also proved, on the part of the defendant, that after default made by the plaintiff in complying with the contract, he, with three of his agents, called at the house of the plaintiff in regard to the furniture, and upon being tpld by the plaintiff that she was unable to pay the balance due, it was proposed that he should take back one of the articles purchased, and thus settle the matter.; that this proposition was acceded to by him, and he thereupon called in one of his agents to assist in removing the article, and proceeded up stairs to get it, where, as as he' was informed by the plaintiff, it was to be found ; though he did not find it, and left the house without it. ⁵⁹⁷ Upon the evidence the plaintiff prayed for and obtained two instructions to the jury. The first was that if the jury believed from the evidence that the defendant entered on the premises of the plaintiff against her consent, or, having entered into the hall or passage of her house without her knowledge, afterwards, and against her consent, went into the rooms, chambers, or interior passages of her house, and inspected and handled the furniture therein, the said entrance was a trespass ah initio, and the jury could assess such damages for the trespass and injury to the property and personal rights and feelings of the plaintiff, as they might deem a just compensation for the wrong and injury sustained. In granting this instruction we think the court below fell into error. There was no plea of leave and license interposed by the defendant; but the contract, signed by the plaintiff, and about which there was no dispute, was admitted in evidence without objection.

The instruction, as is perceived, makes no reference whatever to the pleadings in the cause. There was, therefore, no question raised by the instruction as to the pleadings, or the issues formed thereby ; it having been repeatedly decided by this Court that, on such an instruction, the only question presented is, whether the law be properly announced with reference to the facts of the case as they may be found by the jury. Stockton vs. Frey, 4 Gill, 406 . And where the Court, as in this case, is called upon by the plaintiff to instruct the jury,, as to the right to recover upon an assumed state of