
    John F. Walter v. Jehial T. J. Post.
    Upon the trial of an action to recover the damages alleged to. have been sustained by the plaintiff from certain wrongful acts of the defendant, although no express agreement or consent of the parlies to the commission of the acts be proved, the jury has the right to infer the existence of such an agreement or consent from the acts of the parties and other circumstances.
    So where it is proved to the satisfaction of the jury that the plaintiff actually consented to the acts for which, as trespasses, he claims damages, he ought not to be allowed to recover.
    And a consent operates as a license, and a license is, in all cases, a justification of a trespass. "
    As a license is not required to be in writing, it may, in all cases, be proved by parol, either by showing its express words, or by proof of facts and circumstances from which the jury may infer its existence.
    
      Held, therefore, that the Judge erred, upon the trial of this cause, in refusing to instruct the jury as requested, “ that it was not necessary for the defendant to prove an express consent of the' plaintiff for him (the defendant) to take down and remove the old division-wall, but that his consent might be.inferred from his acts, and that if the jury believed that he did consent to these acts of the defendant, he cannot recover any damages therefor,” and that the Judge also erred in charging the jury that, “ unless the defendant had proved a clear and express consent on the part of the plaintiff that the defendant might remove the wall, he was not precluded from recovering any damages resulting to him therefrom.”
    
      Held, also, that the further instruction given by the Judge to the jury, “that if the plaintiff merely submitted to the taking down of the wall from an erroneous opinion that the defendant had a right to remove it, his submission would be no bar to the action,” if not clearly erroneous, was calculated to mislead the jury. There are many cases in which such a submission to the acts of a person who is acting not wilfully, but is doing what he believes he has a right to do, would be justly construed as an acquiescence that would preclude the plaintiff from asserting his own ignorance of his legal rights to the prejudice ef a defendant equally ignorant, and relying in good faith upon the silent submission of the plaintiff as sanctioning his acts.
    In such cases it may be justly held, that the submission of the plaintiff operates as a license, the validity of which he is estopped from denying.
    In an action to recover damages for the injuries to the business of the plaintiff from a wrongful act of the defendant, the loss of profits, if a direct consequence of the wrong, may be included in an estimate of the damages that the plaintiff is entitled to recover.
    Hew trial ordered; costs to abide event.
    (Before Duer, Bosworth and Woodruff, J.J.)
    December 8, 1856;
    February 28, 1857.
    Appeal by defendant from a judgment for the plaintiff upon a verdict in his favor.
    The action was brought to recover the damages that the plaintiff alleged he had sustained from certain wrongful acts of the defendant. . The principal defence was, that the plaintiff had consented to the acts of which he complained.
    The cause was tried before Bosworth, J., and a jury.
    The nature and grounds of the action and of the defence sufficiently appear in the following statement of the pleadings:
    The complaint alleges that the plaintiff is the lessee of a house and premises in the city of New York, for the term of eight years from the 1st day of May, A. D., 1852, and that since this date he has used and occupied, and still uses and occupies the first floor as a merchant tailor’s store, and that he also used and occupied during the same period the yard and rear part of the said premises, and has hired and rented the basement to other persons who used and occupied them for various purposes. .
    It then alleged, that on or about the 15th of June, 1854, the defendant, by himself and his agents, workmen, etc., etc., broke down and destroyed the southerly wall of the building, inserted beams into the house, and dug up the earth in the yard and carried away portions thereof, and built a wall upon the premises; entered the wall of the house and into the basement, and did various other injuries which it is unnecessary here to state in detail, and did thereby greatly obstruct the ingress and egress of the plaintiff’s customers, and did prevent many customers from entering, and did compel the plaintiff to abandon his residence in the said house, and subjected him to various and heavy expenses, and continued in the commission of the said trespasses for three months, from, etc., etc.
    That the plaintiff had been thereby deprived of the use of his house, etc., for the period of three months, and had lost and been deprived of sums of money due for the rent of divers portions of the premises, and the goods, etc., were much injured by dust and exposure; the plaintiff’s trade was injured, his profits diminished, etc., etc., to his damage $5000.
    The answer of the defendant sets up title in the adjoining lot; the defendant’s arrangements and contracts for building thereon ; the discovery, on the removal of the defendant’s old building, that the foundation wall was one half upon each lot, so that below the surface it supported the walls of both buildings; that, on notice to the plaintiff, and a proposal by the defendant that he would remove the old wall and erect a new wall upon the lot occupied by the plaintiff sufficient to support the plaintiff’s building, and would also restore the basement of the plaintiffs house to its original condition within a reasonable time, and in the mean time would shore up and sustain the plaintiff’s said building, the plaintiff expressed his satisfaction, and desired that the same be done as soon as practicable. It then averred the careful and proper performance of the work at large expense, and claims that as it was done at the plaintiff’s request, when, (as averred) it was his duty to do the same himself, he was justly indebted to the defendant therefor. In relation to the excavation of the yard, the answer averred notice to the plaintiff, and claimed that it was his duty to support the earth and prevent its falling into the excavation there made on the defendant’s lot only; his neglect to do so; that the earth in consequence fell in and upon the defendant’s lot, to his damage, etc. That as to the basement, the injury, if any, was to the tenants, and not to the plaintiff.
    The answer denied other allegations.
    To so much of the answer as alleged any request by the plaintiff, and to all that >js alleged as a ground of any counter-claim, the plaintiff replied Icy a general denial.
    There were other allegations in the pleadings, but enough is here stated to make the questions raised on the appeal intelligible.
    To various rulings on the trial, exception was taken by the defendant, which are sufficiently explained in the opinion of the coyrt.
    
      JG. J. Phelps, for the appellant.
    
      Jas. W. Gerard, for the respondent.
   By the Court. Woodruff, J.

On the trial of this cause the plaintiff called a -witness, and examined him respecting the description of the building occupied by the plaintiff, its interior arrangements, its condition, occupation, and manner of' use at, and immediately prior to, the time when the work complained of was begun by the defendant, and the witness proceeded to describe particularly the excavation made by the defendant, the introduction of the beams into the basement of the premises, when they were put in, and how long certain of the alleged grievances continued, and was proceeding to state how many beams were im serted, their height and position, etc., when the defendant’s counsel objected to any evidence as to damages to the basement, as it appeared that they were under-let, and his objection being overruled, he excepted.

We think there was in this ruling no error. Had the testimony tended to no purpose but to show what damage the tenants had sustained, the objection would have been well taken, but the testimony was a part of the history of the defendant’s acts tending to the injury of the entire building—it was a part of the res gestae —it would have been an imperfect and unfair statement of the transactions to state that the defendant removed the foundation wall without at the same time stating what he did to sustain the wall above, and how he did it. Its imperfections or its only partial adequacy might be the very subjects for the consideration of the jury; and although the effect of what was done, upon the plaintiff and his business, was the ultimate end and object of the investigation, these details, we think, clearly relevant and proper.

Besides, although the basement was let to other tenants, the plaintiff himself occupied the rear building, and there was a basement hall at the side of the building, across which the beams were inserted, and it appeared that this hall was used as well as the hall on the first story, for access to the rear building, and for various other purposes, by the plaintiff himself and his family. Its obstruction was, therefore, an immediate injury to the plaintiff, proper to be considered by the jury; and a stair-case was shown to have been removed, which led from that basement hall to the first story, which the plaintiff occupied as a store.

If there was any evidence given subsequently, which tended to show the damages which were sustained exclusively by the tenants, no objection was made, and the attention of the court was in nowise called to it. The general objection above stated cannot, we think, be sustained.

In the course of the examination of another witness, another general objection was stated by the defendant’s counsel, which appears in the case thus: “ The defendant’s counsel objected to testimony as to the general injury to the walls and building,” which objection was overruled and exception taken.

To what question this objection was addressed does not appear. The testimony of the witness which follows immediately after such ruling is this: “ The water was running down the wall, and tubs were set on the floor to catch the water.” The witness was describing the condition of the building after the alleged trespass.

This exception was not urged on the argument of the appeal, and we do not discover any thing in it which requires extended discussion. If we regard the form of the objection it was clearly untenable, the general injury to the walls and building, in connection with the effect of the injury upon the plaintiff and his business, were (if the plaintiff’s acts were shown to be wrongful) the very subject of inquiry; whether and to what extent the plaintiff should be allowed for cost of repairing the injury was another and distinct question.

What the defendant meant by “general injury” is not very apparent. If he intended by that, that the plaintiff’s counsel should point his questions, or the witness address his answers to a distinct specification of each particular place and particular wherein the premises were injured and their occupation rendered less valuable to. the plaintiff, this is not sufficiently indicated by the objection.

If he meant that the injury to the walls and building could not be considered by the jury in determining how far the occupation of the plaintiff was interfered with and rendered less valuable, it was clearly untenable. We might, perhaps, say that the objection was too vague and indefinite, and was properly overruled on that ground; but we do not perceive how, in any aspect, the objection could be sustained.

Some other exceptions were taken to the admission of evidence, and an exception also to the refusal of the Judge to order a dismissal of the complaint, but they were not urged on the argument of the appeal, nor referred to in the points which he submitted, and we may dismiss them with the remark that we concur with the defendant’s counsel in the opinion that they furnish no ground for a reversal of the judgment.

It is stated in the case made for the purposes of the appeal, among other requests made by the counsel for specific instructions to be given by the court in the charge to the jury, that the defendant’s counsel requested the Judge to charge:

“ That it was not necessary for the defendant to prove the express consent of the plaintiff for him, the defendant, to take down and remove the old division wall, but that the plaintiff’s consent might be inferred from his acts; and if the jury believed, from the evidence, that the plaintiff did consent to the taking down and removal, etc., of the wall by the defendant, he cannot recover any damages therefor;” and the case adds: “But his honor declined so to charge, and instead thereof charged the jury, that unless the defendant had proved a clear and express consent on the part of the plaintiff that the defendant might remove the wall, the plaintiff was not precluded from recovering in this action any damages resulting to him therefrom.”

To this is also added, “that merely submitting to its being taken down, without attempting to prevent it, from an erroneous opinion that the defendant had a right to remove it, would be no bar to this action. If there was a clear and express consent that it might be pulled down, there can be no recovery in this action, but unless such a consent was given, the plaintiff is entitled to recover.”

To the refusal above stated, and to this part of the charge given (as stated) “ instead thereof the defendant’s counsel excepted.”

A slight modification of this part of the charge appears in a subsequent portion thereof, in which the Judge appears to have said, “If the jury believe that it was clearly and distinctly agreed between the plaintiff and defendant that the defendant migüt remove the wall and insert his needles, and that l^e should restore the building to a proper condition, there can be no recovery in this action.” And again, it is added, “but if each party supposed that the defendant had a legal right to remove the wall and insert his needles, and the plaintiff did no more than submit to what he at the time supposed he could not prevept, and had no right to object to, that is not such an assent as bars his right to recover."

The claim set up in the defendant’s answer, and the purpose and tendency of much the greater portion of the testimony given in his behalf, was to show that the plaintiff not only acquiesced in what was done without objection, but that there was a mutual understanding between him and the defendant, amounting to an agreement, that the defendant might remove the wall, and rebuild it, aqd restore the plaintiff’s building to the condition in which it was before the work was commenced.

The acts of both parties were relied upon, (in the absence of the testimony of any witness who heard any express agreement,) as tending to show that such an agreement existed, and it was insisted, that enough wa&proved to warrant the jury in finding that, in truth, the plaintiff gave a sufficient license to justify the defendant in removing the wall, and sustaining the building by beams or needles in the manner he did.

Was there nothing in the charge on this subject other than the instruction' above recited, that “if the jury believed that it Was clearly and distinctly agreed,” etc., it might, perhaps, be regarded as a submission to the jury of all the facts and circumstances disclosed by the evidence, including all the acts of the parties, with the absence of any objection by the defendant, and as leaving to them to say whether an agreement existed, and if an agreement was necessary to the defendant’s protection in the sense in which it was used in the charge; the addition that they must also find that it was a clear and distinct agreement would not be material. It does not occur to us that, in reference to a single point under discussion, any thing but a clear and distinct agreement can properly be called any agreement.

But, although this latter portion, of the charge, as well as the whole current of the evidence received from the defendant on the trial, seems to us to indicate that the Judge rightly appreciated the rule which, undoubtedly, permits the jury to infer the existence of an agreement or consent from the acts of the parties, or' other circumstances, though no witness is introduced who can testify in terms to an express agreement or consent, yet the refusal to charge that it was not necessary for the defendant to prove an express consent, but that such consent might be inferred from his acts, remains in the case not only unexplained and unqualified, but is followed by the instruction, that unless a clear and express consent was proved, the plaintiff is not precluded, etc.

We all concur in saying, that if the jury should find, from the evidence, that the plaintiff actually consented to the acts of which he now complains as a trespass upon his premises, he is not entitled to recover from the defendant. A license is always a sufficient justification of a trespass, and the books are full of pleadings and precedents in which it is treated as a complete defence. And we are equally clear, that a license, not being required to be in writing, it may be proved like any other similar fact, by showing express words of license, or by proof of the acts of the parties, and other circumstances, from which the jury may infer that the plain-: tiff consented to the alleged trespasses.

We also think that the further instruction above recited, that merely submitting to the taking down of the wall from an erroneous opinion that the defendant had a right to remove it, would be no bar to the action, which was somewhat more explicitly repeated) as not warranting the inference that the plaintiff assented to what was done, if each party supposed the defendant had a legal right to do what he did, if not clearly erroneous, was calculated to mislead the jury.

There may, undoubtedly, be a submission to a wrong, done under the assertion of a right, and in spite of the plaintiff’s dissatisfaction, a silence where remonstrance is seen to be futile, which could in nowise be regarded as either license or.assent. But, on the other hand, a standing by, without objection, when a trespass is committed by one who is at the time acting, not wilfully, but in the belief that he is doing what he has' a right to do, may, and often will, in legal effect, operate as a license. It is such an acquiescence as estops a party afterwards to complain of the trespass, when the other party acts in known reliance thereon. This subject is noticed in the opinion of this court in the case of Miller v. Davis, at the February General Term, 1856.

A license may be given and proved by parol, and it may not only be inferred from the acts of the parties, in connection with the silent acquiescence of the plaintiff, but such acquiescence may enure as a license by estoppel when the other requisites to create an estoppel in pais concur, and we are not aware that in either case the ignorance of the plaintiff of his legal rights can alter the effect or prejudice the defendant.

We might dispose of this appeal without examining the other questions discussed on the argument; but it may be important for the purposes of the new trial, which must be ordered, that they should be disposed of.

The defendant requested the Judge to charge that the plaintiff could not recover for injuries to the freehold, because there is no allegation in the complaint that he (the plaintiff) is responsible to the owner of the freehold for injuries to the premises committed during the continuance of the plaintiff’s term; and the case states that his honor declined so to charge, or otherwise in respect thereto than is contained in the charge actually given, viz., “with respect to injuries to the building itself, the plaintiff is entitled to recover what it would cost to put it in a suitable position for the Use before made of it.....That the plaintiff would be entitled to recover sufficient to put the building in as good condition as when he hired it, natural-wear and tear excepted.”

The want of harmony between these two propositions suggests the doubt, whether, in making up the case, some mistake has not occurred which was not corrected in the settlement, and this doubt is strengthened by another statement in the case, which, if true, would show that the plaintiff’s lease, with the covenants therein, was not given in evidence at all on the trial, and that the covenants therein, which, it is claimed, made it the duty of the plaintiff to repair, were not even offered in evidence by the plaintiff. The plaintiff had been in the occupation of the premises for more than two years when the alleged trespasses were committed. We cannot think that the plaintiff’s counsel claimed, or the Judge intended to be understood, that, under any view of the plaintiff’s duty to his landlord, he could recover for any thing more than the injury done to the building by the defendant. In respect to this item, all that he could ask was an amount sufficient to put the building in as good a condition as it was before the trespass was committed; the defendant was not bound to answer for injuries sustained in any manner, whether by natural wear, or otherwise, during the previous two years.

In regard, however, to the question raised by the defendant’s request, we apprehend there is no doubt about the true rule. As tenant for a term of years, the plaintiff had a right to be compensated for all the injury done to his possession, and in ascertaining this, the expense necessary to restore the building to such a state as would make that possession as beneficial for the purposes of the tenant as it was before the trespass was committed, should be allowed ; but with this limitation, that such allowance should not exceed the value of the plaintiff’s term, including the rent he was bound to pay. The limitation stated is necessary, for if the defendant had torn down the entire building, or otherwise driven the plaintiff therefrom, he could (apart from the question whether exemplary damages should be allowed) only recover the value of that possession of which he was deprived.

Had it appeared, however, that by the terms of the tenancy, the plaintiff was bound to make repairs, and restore the premises to the landlord at the end of the term in as good condition as when they were leased, then the defendant was liable to make good all the injury caused by the trespass, and enable the plaintiff to put the building in as good condition as it was when the trespass was committed.

We incline to the opinion that the allegations in the complaint are sufficient to entitle the plaintiff to show that such were the terms of his lease, and claim damages accordingly, and that the question appertains to the measure of damages; and yet the question is not free from doubt. There is not only no averment that the plaintiff was bound to repair, but it is not even stated that he was put to any expense in repairing, or that he made any repairs. The doubt, if any there be, on the sufficiency of the complaint in this respect, can easily be removed by amendment, which would, probably, have been allowed on the trial, had it been sought by the plaintiff’s counsel. He may, perhaps, be advised to seek such amendment before another trial.

The defendant insisted on the trial that the plaintiff could not recover for damages sustained by loss of business, because he had given no evidence of any such loss; and the counsel, on the argument of the appeal, add, as a further reason, that such damages, if sustained, are too remote to be the subject of recovery. '

We have had occasion recently to consider this latter proposition in the case of St. John v. The Mayor, argued at the December General Term, and decided at the present term, (ante, p. 315,) in which we hold, that in actions to recover against a tort feasor, the. loss of profits may be taken into view in estimating the damages, though in actions for a breach of contract the general rule is otherwise. (See Finch v. Brown, 13 Wend. 601; Fitch v. Livingston, 4 Sandf. 514; Wilkes v. Hungerford Market Co., 2 Bing. N. C. 281; Iverson v. Moore, 1 Ld. Ray. 486; Lacour v. The Mayor, 3 Duer, 406.) This does not necessarily embrace a right to recover purely contingent or speculative profits, but will warrant the recovery for such losses as are proved to be the direct consequence of the wrong which is to be redressed.

The proof on the subject given by the plaintiff on the trial was at most exceedingly slight; the only testimony we find in the case as settled, that appears to bear upon this claim, is that of a witness who testifies that he “ had nothing else to do but keep brushing and dusting goods all the time; we had cloths, silk velvets, and all kinds; the wall was left open about three months. I (he) remained there nights and watched; the front door had two beams in it, etc.; the light goods were injured and spotted with dust.”

"We do not think that, in an action in which the damages are not fixed and certain, and upon proofs such as were given, the whole question of injury to the plaintiff’s business should have been withdrawn from their consideration. But it was proper to instruct them that the plaintiff could not recover for any loss resulting from the interruption of his business, without proof that his business was interrupted; nor for any loss in his business,

without proof of such loss; nor for any greater loss than was proved. We think the language of the charge was substantially to that effect, though we are free to say that, beyond some evidence of injury to the goods, and of increased expense or trouble in taking care of them, no such loss was shown.

It only remains to notice what was 'said by the Judge, in relation to sheath-piling, and in the refusal to charge that the plaintiff was not bound to sheath-pile and support the premises and soil of the plaintiff. Although one who excavates his own soil is not under an affirmative duty to protect his neighbor’s soil from.falling, he may not conduct his excavation so heedlessly" or recklessly as to unnecessarily cause injury to his neighbor, (Radcliff's Executors v. The Mayor, etc., 4 Comstock, 195-203,) and, on the other hand, the neighbor, having received due notice, should, if he desire to support his own soil, resort to the proper means of doing so. He may not be liable, and, we think, is not himself liable, if he chooses to neglect this precaution. The one who digs away his own soil and so, by the operation of the laws of nature, merely draws upon himself his neighbor’s soil or sand, must, we think, submit to the inconvenience, and he has, we think, his election to do so, or to protect himself by sheath-piling or otherwise, as he may be advised.

The judgment must be reversed, and a new trial ordered, costs to abide the event.  