
    BURWELL v. BRODIE.
    (Filed April 5, 1904).
    1. LANDLORD AND TENANT — Damages—The Code, see. 1776.
    
    . Under The Code, see. 1776, a tenant who secures the reversal of summary proceedings against him may have damages for eviction assessed in the original or in a separate action.
    2. LANDLORD AND TENANT — Damages—Pleadings.
    A complaint in an action by a tenant for wrongful eviction by summary proceedings, alleging that by reason thereof plaintiff was deprived of his house and garden for shelter and support of his family, and was distressed in body and mind and pur to great mortification and shame and loss of employment, sufficiently alleges damages other than the loss of crops.
    3. JUDGMENT — Estoppel—Landlord and Tenant — Advancements.
    A judgment for a tenant in summary proceedings is not an estoppel on the landlord to the extent of precluding him from showing in a subsequent action advancements made prior to eviction to which he was entitled.
    4. LANDLORD AND TENANT — Advancements.
    Where a landlord wrongfully evicts a tenant, he can recover for advancements to the tenant before the eviction, but not for labor performed by himself after the eviction.
    Walker, J., dissenting.
    ActioN by Matthew Burwell against B. T. Brodie, heard by Judge G. 8. Ferguson and a jury, at October Term, 1903, of the Superior Court of Vance County.
    The present plaintiff was the tenant or cropper on the present defendant’s land during the years 1901 and 1902 under a farming contract by the terms of which he was to have one-half of the crop made on the land. In May the present defendant instituted summary proceedings before a justice of tbe peace to eject tbe present plaintiff. Erom a judgment against bim, be, tbe present plaintiff, appealed to tbe Superior Court. He gave no undertaking to stay execution and was, by tbe constable acting under an execution issued upon said judgment, evicted and tbe present defendant put in possession. At October Term, 1902, tbe cause came on for trial upon tbe appeal, and tbe Court beld upon tbe plaintiff’s (present defendant) own showing tbat be was not entitled to recover, and adjudged tbat a writ of restitution issue to put tbe present plaintiff in possession. Tbe Court also adjudged tbat tbe present plaintiff recover one-balf of all crops raised on tbe land. Tbe present defendant appealed and bad time allowed to give bond and perfect bis appeal. He failed to give tbe bond or perfect bis appeal, but remained in possession, gathered and sold tbe crop, receiving therefor $366.79.
    Tbe present plaintiff thereupon brought this action, alleging tbe foregoing facts, and alleging tbat tbe defendant’s conduct in tbe premises was unlawful, wrongful and tor-tious and amounted to an abpse of legal process, and tbat by reason thereof tbe plaintiff “was deprived of bis bouse and garden for shelter and support of bis family; tbat be was greatly distressed, agitated and troubled both in body and mind thereby, and specifically and more so on account of tbe condition of bis wife, which was known to tbe defendant, and was put to great mortification and shame thereby as well as loss of employment, etc.” Eor all of which be demands damages. His Honor rendered judgment “tbat tbe plaintiff has not alleged in bis complaint matters sufficient to constitute a cause of action for damages other than tbe value of tbe crop.” He thereupon proceeded to adjudge tbat tbe plaintiff recover one-balf tbe value of tbe crop, ascertained to be $183.39. Tbe Court beld tbat, in respect to tbe crop, tbe defendant was bound by tbe judgment rendered at Fall Term, 1902, and refused to allow the defendant to show the amount expended by bim in making and saving the crop.
    From this judgment the plaintiff and defendant appealed.
    
      T. T. Hides and R. 8. McOoin, for the plaintiff.
    
      W. B. Shaw and A. G. Zollicoffer, for the defendant.
   CoNNOR., J.,

after stating the facts. We are of opinion that his Honor was in error in holding that the plaintiff did not state facts sufficient to enable him to submit an issue to the jury in regard to the alleged damage sustained by him for the eviction. While he could have demanded such an issue upon the rendition of the judgment of October Term, 1902, he Avas not compelled to do so. Section 1176 of The Code expressly secures to him the right to “recoArer damages of the plaintiff for his removal in such cases as the present. The question is settled by this Court in Woody v. Jordan, 69 N. C., 189. It is there said that the defendant who successfully resists an action of replevin may have his damages assessed in the original action but that he is not compelled to do so, and may have his separate action on the bond or on the case for damages sustained by the wrongful suing out of the writ and eviction. Mr. Justice Rodman says: “It must be, then, that the common law gave him full indemnity by means of a separate action for the damages for the taking and detention.” It seems from the statement of the case on appeal that his Honor was asked by the defendant to hold that the complaint did not state facts sufficient to constitute a cause of action against the defendant” for damages, for abuse of legal process, mental or physical anguish or malicious prosecution, and that the said complaint does not allege malice or want of probable cause, or special damages because of his eviction, “and moved tbe Court to dismiss tbe action as to any and all sucb alleged causes. Tbe motion was sustained. As we have seen, tbe judgment, wbicb is tbe record and 'controls in respect to wbat is decided, simply states that bis Honor ruled that tbe complaint did not allege any damage other than tbe loss of bis crop. We can not concur witb this construction of tbe complaint. We think it is sufficiently alleged that be suffered damages incident to bis wrongful eviction, i. e., “a shelter and support for bis family, etc.” We do not express any opinion in regard' to tbe character and nature of tbe damages wbicb be may recover upon tbe allegations. He alleges a wrongful eviction, and for this injury be may recover sucb damages as proximately resulted from sucb injury. His Honor should have submitted an issue involving this inquiry and instructed tbe jury in regard to tbe measure and kind of damages wbicb might be recovered. This Court has, in Remington v. Kirby, 120 N. C., 322, announced tbe principle upon wbicb punitive damages may be recovered.

We simply decide that upon tbe complaint tbe plaintiff was entitled to have an issue as to bis actual damages. To this end there must be a new trial.

IN defendant's appeal.

OonnoR, J.

His Honor Judge Winston at tbe October Term, 1902, rendered judgment that tbe plaintiff be restored to tbe possession of tbe land from wbicb be bad been -wrongfully evicted, and recover one-balf tbe crops made. Tbe execution of this judgment was prevented by tbe appeal of tbe defendant, who remained in possession until tbe expiration of tbe plaintiff’s term, gathered and sold tbe crops. While it may be that tbe present plaintiff may have bad tbe value of tbe crops ascertained and judgment therefor at tbe next succeeding term of Court, tbe present defendant baying failed to perfect or prosecute bis appeal, be was not compelled to do so. In this action, he relies upon the judgment as an estoppel upon the defendant. It is an estoppel to the extent of what was decided or should have been decided. .It does not operate to prevent the present defendant from showing the value of the crop and what portion of it he is entitled to retain for advancements made before the eviction under the terms of the contract. By his wrongful act in evicting the plaintiff, he does not forfeit his rights under the contract and the statute as landlord which had accrued to him. The record shows that the plaintiff was evicted about May 1; that the defendant furnished guano, cotton-seed meal and cotton-seed used upon the crops. The date at which these articles were furnished is not given, but we may take notice of the season for planting and find that they must have been purchased or furnished at or about the time of the eviction. We infer from the record that the crop was not planted, as the controversy grew out of a difference between them as to what crop should be planted. However this may be, the defendant should be allowed a credit for the guano, cotton-seed meal and cottonseed used in planting and making the crop, as the use of them was necessary to the planting and making the crop and in no way affected by the eviction. In regard to the amount paid for labor, the defendant may not have credit. Having, as the record shows, and for the purpose of disposing of this appeal, conclusively so, • wrongfully evicted the plaintiff and prevented him from doing the work, he can not charge him for having it done by some other person. This would be to take advantage of his own wrong.

We are not sure that we understand the last two items on the account for corn and hay furnished to feed the mules “over amount furnished.” It does not appear when or under what circumstances these articles were furnished. It is possible that these questions may be adjusted under the advice of the intelligent counsel representing the parties. There are few controversies more difficult to adjust than those arising out of farming contracts. It is a subject of congratulation that they are usually settled by mutual concessions. This case would, as it seems to us, seem to offer an opportunity to do so. There must be a

New Trial.

Walker, J".,

in defendant’s appeal. I dissent in this case from the opinion and judgment of the Court in the defendant’s appeal. I can not agree with the Court as to the legal force and effect of the judgment awarding to the plaintiff in this case, who was the defendant in the other suit, one-half of all the crops grown on the land. The defendant Brodie, who was the plaintiff in that suit, had his day in Court and full opportunity to show that Burwell was not entitled to one-half of the crop, but to one-half less the part to be retained by him for advancements made before the eviction. If Brodie Avas entitled to any deduction on account of ad-A'ancements, then Bunvell Avas not entitled to one-half of the crop, and yet that is precisely what the Court decided Avhen the parties Avere at issue as to Avhat were their respective rights in the crop. The judgment or decree of a court possessing competent jurisdiction is final as to the subject-matter thereby determined, and as to every other matter which the parties by the exercise of reasonable diligence might have litigated in the cause and which might have been decided or determined therein. Clark, J., in Wagon Co. v. Byrd, 119 N. C., 460, thus states the rule: “The plea of res judi-cata applies, except in special cases, not only to the points upon which the Court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject in litigation and which the parties, exercising reasonable diligence, might have brought forward at the time and determined respecting it,” citing 1 Herman on Estoppel, sections 122 and 123. I do not think it can be successfully contended that the defendant Brodie did not have full time and opportunity to bring forward the matter of advancements, now claimed to have been made by him to Burwell, and to have his right to so much of Burwell’s half of the crop as was necessary to pay them adjudicated. The point was directly presented in that action. Tylor v. Capehart, 125 N. C., 64. The judgment declares that Burwell is entitled to one-half of the crop, and that finding and determination preclude the other question now attempted to be raised. Bryan v. Alexander, 111 N. C., 142.  