Unless the danger was so great as to threaten this case it is seen that defendant's foreman immediate injury, we cannot so hold. Shore v. Bridge Co., supra. It was shown that this scaffold had been used for nearly four days without the cleats or bolts described above. No one had been injured by slipping of the boards. While it is true that the board that actually did slip had been in place only a short time, it was placed there by the defendant itself. The fact that defendant by its foreman was there and directing the act was in evidence. Defendant's judgment of the imminence of the peril was there as well as that of plaintiff. By the direction given that judgment was shown to be that the act was not imminently dangerous. When all the facts are considered, this was a case for the jury. In a case like this, the rule is that the servant can rely upon the judgment of the master, provided that the servant did not know that the doing of the act was accompanied by imminent and impending danger-such imminent and impending danger as would preclude a reasonably prudent man from undertaking the act. Wilson v. Rys. Co. (Sup.) 181 S. W. 19. We cannot say as a matter of law that the danger, though obvious, was of such a degree that plaintiff was not justified in the belief that he could work upon it in safety, with the exercise of reasonable care and caution. Shore v. Bridge Co., supra. [11] From our statement of the facts in directed the placing of the board that slipped and fell; therefore this could not have been a case where an appliance, on account of changing conditions during the course of the work produced by a plaintiff and his fellow servants themselves, is denominated "transitory" or "shifting." [12] Defendant makes the further point that the damages were excessive. We have already stated plaintiff's injuries, and it is needless to go over them again. However, the evidence shows that the plaintiff immediately after the accident was taken to a farm house and the next day removed to a hospital where he remained 13 days; that he was treated by a physician regularly for several months; that he was physically unfitted, by reason of his said injuries, for work at his trade from October 9, 1914, to the following June; that during the whole of that time he was wholly unemployed except between December, 1914, and June, 1915, when he was engaged in operating a pool hall that he said was not a success; that prior to said injury he was 37 years old and a strong, able-bodied man, steadily employed at a wage of $5.20 a day. From all the evidence in this case we cannot say that the award of $2,100 damages for plaintiff's injuries was excessive. Judgment is reversed, and the cause remanded, with instructions that the verdict be reinstated. All concur. DECKER v. RICE et al. (Supreme Court of Tennessee. April 14, 1917.) LANDLORD AND TENANT 252(1)—LIABILITY OF PURCHASER OF CROPS. Under Thomp. & S. Code, §§ 5302, 5302a, and 5302a1, allowing a landlord whose rent is in arrears to recover the value of the crop from the purchaser from the tenant, and making persons selling a tenant's crop and applying the proceeds to payment of tenant's indebtedness to themselves liable for such amount, only the first buyer from the tenant is liable, in absence of fraud, although under section 5299 the landlord may levy upon the crop in any person's hands. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1002, 1022, 1025.] Certiorari to Court of Civil Appeals. Bill by Mrs. Loula F. Decker against E. M. Rice and others. A majority of the Court of Civil Appeals agreed with the chancellor in sustaining a demurrer to the bill, and complainant brings certiorari. Writ denied. Wm. G. Lynn, of Ripley, for complainant Decker. Craig & Bullock, of Ripley, for de fendants Rice et al. WILLIAMS, J. The bill of complaint was filed seeking to recover of the defendants the value of two bales of cotton alleged to have been grown on lands of the complainant by his tenant, it being also alleged that the defendants purchased the same within the period allowed to complainant, as landlord, for the enforcement of the lien of a landlord on crops raised by his tenant. A demurrer to the bill was sustained by the chancellor, the ground of which was that the bill did not allege that the defendants were purchasers from the tenant who produced the bales of cotton. The Court of Civil Appeals divided on the question, the majority agreeing with the chancellor in the view that only the first purchaser of the tenant's crop is liable to respond to the landlord for the value of the property purchased. The case is before this court on a petition for certiorari filed by the complainant landlord. Whether a subvendee of the crop, or a part thereof, is so liable has never been determined by this court. By the act of 1825, a debt for rent of land is made a lien on the crop in preference to all other debts, enforceable by attachment, or by judgment against the tenant and execution levied upon the crop "in whosesoever hands it may be." Thomp. Shan. Code, 5299 et seq. In Bryan v. Buckholder, 8 Humph. (27 Tenn.) 561, it was held that the landlord could not recover of the purchaser the value of the crop merely because the act of 1825 created a lien on the same enforceable if found in his hands, the statute receiving a strict construction. By Acts 1857-58, c. 52, the above act was amended so as to provide that when any per son shall "purchase from any tenant" he shall be liable to the landlord. This act was codified by the same General Assembly in the Code of 1858, so as to set forth that the landlord "may recover from the purchaser of the crop, or any part of it, the value of it," etc. Thomp. Shan. Code, §§ 5302 and 5302a1. By Acts 1899, c. 22; the statute was further amended by a provision that any factor, broker, commission merchant, or other person who sells the crop of a tenant or any portion of it, and applies the proceeds to the payment of the tenant's indebtedness to himself, "shall be liable as a purchaser" to the person entitled to the rent. Thomp. Shan. Code, § 5302a. We are of opinion that the right of the landlord to so recover, being in the derogation of common law, is to be strictly construed in the matter of determining what purchasers are included for liability; and, further, that by the earlier (1857-58) and the latest (1899) legislative pronouncements only, a first purchaser is indicated to be subjected to liability to the landlord for the value of portion of the crop by him purchased. It is to be noted that it is "the" purchaser of the crop, and not “any" purchaser who is made liable. It may, on first blush, seem somewhat anomalous that the landlord is given the right to enforce his lien on the crop itself in the hands of any subvendee, and the right withheld to proceed against the latter for the value thereof; but in Biggs & Moore v. Piper, 86 Tenn. 591, 8 S. W. 851, it was pointed out that the right of action for such value against the purchaser is "not dependent upon the lien, but is an independent and substantive cause of action, given by statute, against the purchaser of crops from a tenant who has not paid his rent." There is no lack of reason for the distinction thus made by the Legislature. When the landowner proceeds to enforce the lien on the property in the hands of a second purchaser, he must ordinarily act promptly in order to the identification and seizure of the same. The res, in itself, may furnish convenient proof of his right or want of right to subject it. When it passes into the possession of a third purchaser, the second purchaser is no longer liable, but the property remains subject to the lien, provided the landlord can identify it. On the other hand, the remedy here sought to be asserted may be enforced against the purchaser who is truly liable at any time until the bar of the six-year statute of limitation prevents. Davis v. Wilson, 86 Tenn. 521, 8 S. W. 151. If the complainant's insistence were held good, not one but every purchaser to the remotest degree would be liable to respond, whereas but one may be subjected to loss. It is manifest that the ruling would seriously embarrass and discourage trade in agricultural com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes modities-a purpose to do which we would Appeal from Chancery Court, Davidson not attribute to the Legislature unless com- County; Jas. B. Newman, Chancellor. pelled by statutory words that are unequivocal in meaning. We are not dealing with a case where the first sale by the tenant is claimed to be fraudulent, colorable, or collusive, and we express no opinion as to the effect thereof. Writ of certiorari is denied. FOX v. CORBITT et al. (Supreme Court of Tennessee. April 16, 1917.) 1. NUISANCE 3(1)-PRIVATE NUISANCEABATEMENT. A saloon where large crowds of drunken negroes are allowed to assemble and engage in foul talking and indecent exposure, obstructing passage to plaintiff's store next door, where such conduct can be seen and heard by customers in store, is a private nuisance abatable by a court of equity as such. [Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 4, 9, 20-22.] 2. NUISANCE 19 PRIVATE NUISANCE WHICH IS A CRIME-ABATEMENT. Although maintaining a nuisance is a crime, it will be restrained as a private nuisance if complainant can show that he suffers substantial damage different in kind from that suffered by the public at large. [Ed. Note. For other cases, see Nuisance, Cent. Dig. § 55.] 3. NUISANCE 35-PRIVATE NUISANCE-DEFENSE-DISCONTINUANCE PENDING SUIT. If, after suit is brought and jurisdiction of a court of equity has attached, the defendant ceases to commit the nuisance, the court may still establish the right to an injunction in order that subsidiary rights may be enforced. [Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 93-941⁄2.] 4. LANDLORD AND TENANT 142(S)-PRI VATE NUISANCE-OWNER OF LEASEHOLD. The owner of a leasehold may maintain an action to enjoin the maintenance of a nuisance detrimental to enjoyment or usable value of premises. 5. NUISANCE 35-TEMPORARY NUISANCEDAMAGES IN EQUITY. Although a nuisance is temporary and abatable in character, a court of equity will, to avoid a multiplicity of suits, award damages accruing after commencement of suit up to time of trial. [Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 93-942.] 6. LANDLORD AND TENANT 142(7)-PRIVATE NUISANCE-MEASURE OF DAMAGES TO LEASEHOLD. The true measure of damages for injury to leasehold premises from a nuisance is the depreciation in usable value of premises, and an allowance for loss of profits in the business conducted thereon is error. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 515.] 7. LANDLORD AND TENANT 142(6)-DAMAGES FROM NUISANCE-EVIDENCE-PAST PRODUCTIVENESS OF BUSINESS. Proof of nature and extent of business interfered with and its past productiveness is proper for purpose of assisting court in awarding damages for diminution in usable value of a leasehold from a nuisance. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 514.] Bill by T. A. Fox against C. L. Corbitt and others. Decree for plaintiff, and defendants appeal. Modified and affirmed. Larkin E. Crouch, of Nashville, for Fox. Robin J. Cooper, of Nashville, for Corbitt. WILLIAMS, J. The bill of complaint was filed by Fox to have a saloon, operated by defendants next door to his place of business as a family grocer in the city of Nashville, declared a nuisance and abated as such, and for the recovery of damages due to loss of business on his part. [1] It appears that the saloon was operated by defendants after the passage of a statute that made it a misdemeanor to sell intoxicating liquors; but the effort of complainant is to show that the saloon was run in such an objectionable way as that it was a nuisance specially injurious to him. The proof clearly shows that the place was, as operated by defendants, in every sense of the word a "negro dive." Large crowds of negroes of low order were permitted to assemble in and about the saloon. Frequently they would block the sidewalk, obstructing pedestrian travel to the family grocery and meat store of complainant. The negroes were often drunk, boisterous, and quarrelsome. Not infrequently they would engage in fights on the sidewalk; and at times there occurred unmentionable indecencies and exposures of their persons. Inside the place negroes were permitted to assemble in mass and engage in loud and foul talking and shouting, which was heard by customers of Fox through the thin partition that separated the two business stands. Customers of complainant, especially women, complained of the above-described conduct, and his trade fell off. After protesting in vain to the defendants, Fox brought this suit. Before the trial of the case defendants discontinued business at that place. The chancellor on final hearing held that the saloon business thus conducted was a nuisance, and made permanent an injunction against defendants. He also awarded complainant $2,000 as damages. From that decree the defendants have prayed an appeal to this court, and assigned the errors indicated by what is said in the discussion which follows. We think it clear that the saloon as conducted by defendants was a nuisance, abatable by a court of equity as such. [2] The fact that the saloon was operated in violation of a criminal statute cannot be availed of by the defendants, since the general rule, as asserted by the great majority of the cases, is that a court of equity will protect property rights against a nuisance, even though the act restrained may be criminal in nature, and be one subject to be suppressed by the state, if the complainant is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Central R. Co. v. English, 73 able to show that he suffers in consequence | such relief. some substantial and special damage dif- Ga. 366; Bly v. Edison, etc., Co., 172 N. Y. 1, ferent in kind from that suffered by the public at large. Weakley v. Page, 102 Tenn. 178, 53 S. W. 551, 46 L. R. A. 552; Detroit Realty Co. v. Oppenheim, 156 Mich. 385, 120 N. W. S04, 21 L. R. A. (N. S.) 585, and cases and texts cited in the opinion and note. [3] It is asserted to be error that on final hearing an injunction was granted, since the defendants had on an earlier date, pending the suit, voluntarily discontinued, and thereby abated, the nuisance. Notwithstanding such a voluntary discontinuance, the court may declare the right to an injunction in order to establish the jurisdictional right of complainant to maintain the suit in the court of equity. The practical questions thereafter are those involved in the adjudication of accrued costs and the award of damages. The true rule in that regard is thus laid down in 5 Pom. Eq. Juris. § 586: "If, after suit is brought and the jurisdiction of a court in equity has attached, the defendant ceases to commit the nuisance, none the less the equity court will give the plaintiff damages and not turn him out of court and compel him to bring another action at law; and it is sometimes held that the injunction also will issue even in this case." The majority of the decisions hold that an award of injunctive process in such event is not proper. It is, we think, sufficient to decree that the right to it was established in order that subsidiary rights may be enforced. [4] The principal proposition advanced by the defendants is, that a court of equity will not enjoin a nuisance at the instance of one who is merely the owner of a leasehold in realty, and there seems to be a slight conflict in the authorities on that point, though the decided weight of authority is against the insistence. The cases are collected in notes appended to Grantham v. Gibson, 41 Wash. 125, 83 Pac. 14, 3 L. R. A. (N. S.) 448, 111 Am. St. Rep. 1003, and Brink v. Moeschl Edwards Corrugating Co., 142 Ky. 88, 133 S. W. 1147, 34 L. R. A. (N. S.) 560, 562. It seems clear that the owner of the freehold is not entitled to recover for injuries to the possession and enjoyment of the premises while they are in the possession of a tenant, where the nuisance is not of a permanent character. Miller v. Edson, etc., Co., 184 N. Y. 17, 76 N. E. 734, 3 L. R. A. (N. S.) 1060, 6 Ann. Cas. 146. The wrongful act may affect two different estates or interests in the same property; and the owner of each should have his right of action. The tenant's relief is for injury done him in that the enjoyment or usable value of the premises, during his holding, is diminished. Tiffany, Landlord and Tenant, 2124; 29 Cyc. 1258. The fact that the tenant renews his lease of the property after the creation of the nuisance does not prevent his being granted 64 N. E. 745, 58 L. R. A. 500. If the contrary were held, the moral victory would be that of the wrongdoer over the one he had injured-a result that a court of equity will not contemplate. [5] It is contended that, the nuisance being one temporary and abatable in character, the wrong is therefore one to be deemed recurrent or renewed from day to day, so that the complainant is entitled, it is said, to recover only the items of damages that accrued up to the bringing of the suit-citing Harmon v. Railroad, 87 Tenn. 614, 11 S. W. 703. This rule is applicable in cases of nonpermanent nuisances in actions at law; but the rule is otherwise in equity where the principal relief sought is injunctive process. Equity moves to avoid a multiplicity of suits and favors the disposition of an entire controversy in a pending suit so far as is practicable; and in such a case there will be an award of damages, not only of those that accrued prior to the commencement of the suit, but of such as accrue up to the time of trial. 22 Cyc. 967; 29 Cyc. 1273; Karns v. Allen, 135 Wis. 48, 115 N. W. 357, 15 Ann. Cas. 543. [6] This brings us to a consideration of the defendants' assignments of error that attack the amount of the damages allowed the com plainant. It is apparent that there was incorporated in the sum decreed an allowance for loss of profits. In fact, complainant's solicitors at-. tempt to justify and sustain the recovery on that basis. We think that the allowance for loss of profits in business consequent upon the maintenance of the nuisance was error. The true measure of damages was the amount of loss suffered by complainant because of the lessening or depreciation of the usable value of the premises under demise. Gossett v. Railroad, 115 Tenn. 376, 89 S. W. 737, 1 L. R. A. (N. S.) 97, 112 Am. St. Rep. 846, and cases cited. [7] The nature and extent of the business interfered with and its past productiveness were proper to be proved, not with a view to measure the damages by expected profits therefrom prevented by the nuisance, but to assist the court in the exercise of its judgment with reference to the awarding of damages for the diminution in the usable value of the property to the tenant in possession. 4 Sutherland, Damages, § 1054. Sufficient facts are disclosed by the record upon which to render a decree without remanding the cause for an ascertainment of damages on the proper basis; and we direct the entry of a decree in this court for $800, with interest thereon since the date of the chancellor's decree. Costs of the appeal will be paid onethird by the complainant, and two-thirds by the defendants. work was done under a contract with SalSANDY LAND & DEVELOPMENT CO. v. mons, and that Brown had a mechanics' lien 4. MECHANICS' LIENS 198 PRIORITY VENDOR'S LIEN. The mechanic's lien statute gives a senior vendor's lien priority over a mechanic's lien. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 348-355.] Appeal from Circuit Court, Floyd County. Suit by Jeff Brown against the Sandy Land & Development Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions. Harkins & Harkins, of Prestonsburg, for appellant. J. C. Hopkins, of Prestonsburg, for appellee. under section 2463 of the Kentucky Statutes on the property to secure him in the value of the labor and material furnished. The development company filed an answer, counterclaim, and cross-petition, in which it averred that on November 24, 1912, it sold for $500 to Salmons the lots improved, and conveyed the same to him by a deed, retaining a lien for the full amount of the purchase money, no part of which had been paid. It averred that its lien was superior to the lien of Brown, and asked that the lots be sold and the proceeds applied in satisfaction of its debt. Thereafter, and before any other pleadings had been filed or evidence taken, the property was sold by order of court, and purchased by the development company for $300. The judgment, however, did not deBrown and the development company. Subtermine the priority of the liens as between sequently Brown filed a pleading in the case, setting up that his lien for the improvement was superior to the vendor's lien of the development company, and asking that so much of the proceeds of the sale as might be necessary to satisfy his claim be set apart for that purpose. In this pleading he averred, in substance, that the lots had not been sold or conveyed by the development company to Salmons, or, if they had, the trade by agreement of parties had been rescinded and canceled; that one Hiram Harris, who was a stockholder and director in the development company, and also mayor of the city at the time the city council ordered the improvement to be made, told Brown that Sal mons was the owner of the lots and had authorized him (Harris) to make the contract for the improvement, and prevailed on Brown to take the contract, although Harris, who was acting as the agent of the development company, knew at the time that the property was owned by the development company and not by Salmons. He therefore charged that the development company was estopped by the conduct of its alleged agent, Harris, in misrepresenting the condition of the title of the property and in prevailing on Brown to do the work, from asserting any lien against it superior to his improvement lien. Other pleadings completed the issues, and after the evidence had been taken, the court adjudged that the lien of Brown was superior to the lien of the development company, and directed that he be paid out of the $300 realized at the judicial sale of the property a sum sufficient to satisfy his debt, with interest and costs, and the development company CARROLL, J. In his petition in this case Jeff Brown alleged that in September, 1914, he entered into a contract with Lee Salmons to furnish the labor and material and construct a concrete sidewalk adjacent to the property owned by Salmons in the town of West Prestonsburg, a city of the fifth class; that under his contract the labor and material furnished amounted to $148, and he asserted a lien on the property of Salmons, and asked that it be sold for the satisfaction of his claim. He made the Sandy Valley & Development Company a defendant, asking that it be required to answer and assert any lien that it had or claimed to have against the property. The suit was not brought to enforce a lien under section 3643 of the Kentucky Statutes, which section authorizes cit-appeals. ies of the fifth class to order the improve- It appears from the evidence that on Noment of streets and sidewalks, and makes vember 24, 1912, the Development Company provision for the cost of the improvement, sold to Salmons the lots that were improved, which is made a lien on the property improv- and in March, 1913, it made to him a deed, ed, but was brought upon the theory that the which was accepted by Salmons, but never For other "ases sce same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |