
    Ketcham v. Miller et al.
    
      Pleading-Actions ex contractu and ex delicto — Breach of contract — Punitive damages not recoverable, when — Trial practice — Reopening of case after parties rest — Discretion of trial court — Plaintiff permitted to reopen case — Right of defendant to introduce evidence.
    
    1. Where a petition avers the execution of a contract, avers the value of the contract to the petitioner, avers the breach ■thereof by the defendant, avers the damage to be in a sum equal to the value of the contract, the gravamen of the complaint is the breach of the contract, and the action sounds in contract, and the averment that the breach was unlawful, wilful, wanton and malicious does not change the action from one ex contractu to one ex delicto.
    
    2. Pünitive damages are not recoverable in an action for breach of contract.
    3. Where in the trial of a case all parties have rested it is within the sound discretion of the trial court whether he will permit either party to reopen the case and introduce further evidence.
    4. Where the plaintiff at the close of his case in chief has rested, and the defendant without introducing any evidence has rested, and the plaintiff has been permitted by the court in the exercise of his discretion to reopen his case and introduce further evidence, the case is also reopened for the defendant for all purposes.
    (No. 17037
    Decided April 11, 1922.)
    Error to the Court of Appeals of Lucas county.
    The amended petition of the defendants in error, Frank F. Miller and Matthew E. Williams, who were plaintiffs below, alleged their residence and the residence of the plaintiff in error, Nettie Poe Ketcham; that plaintiff in error was at the time of the origin of the cause of action, and had theretofore been, the owner of a certain building in the city of Toledo; that plaintiff in error duly leased the building to defend ants in error for a period of one year, with the privilege of five; that they entered into possession under the lease and until dispossessed fully performed and complied with all of its terms and conditions ; that the lease with its privileges, was of the value of $150,000 to the defendants in error; “that on or about the 9th day of June, 1919, the said defendant, Nettie Poe Ketcham, having full knowledge of all the aforesaid, and in breach of said lease then and there in full force and effect, did unlawfully, forcibly, wilfully, wantonly, maliciously, and without the consent of these plaintiffs and over the objection and protest of each and both of them, enter upon the said premises so as aforesaid leased to these plaintiffs and take possession of the same and all of the property appurtenant thereto demised to these plaintiffs by the terms of said lease, and ejected these plaintiffs therefrom, and said defendant has ever since held and now does so unlawfully, wilfully, wantonly and maliciously keep and hold said premises, and will continue to do so, and has prevented and does now and will prevent plaintiffs from using and enjoying the same, and from making and acquiring the profits and value of said lease, and' from obtaining the said extension thereof, as plaintiffs desire to do; to the damage of these plaintiffs in the sum of $150,000.”
    The answer of plaintiff in- error admitted the ownership of the property; admitted the execution of the lease by her attorney in fact; denied the validity of the lease; charged the attorney in fact with collusion and fraud; admitted that defendants in error entered into possession under the lease; and denied each and every allegation of the amended petition not expressly admitted. By way of defense plaintiff in error averred that the lease was forfeited by the defendants in error by failure to comply with certain covenants thereof.
    To which amended answer the defendants in error replied, denying the violation of certain covenants of the lease, admitting the violation of certain other covenants and pleading a waiver thereof by the plaintiff in error, denying each and every averment in the amended answer not specifically admitted, and specifically denying that they had in any way at any time violated any of the provisions of the lease.
    The pleadings are voluminous.
    The cause was tried to a jury and evidence was admitted tending to establish the authority of the attorney in fact to execute the lease and consent to the non-observance of certain covenants thereof, tending to prove waiver of compliance by plaintiff in error; tending to prove the value of the lease to defendants in error; and tending to prove, that, subsequent to the execution of the lease to defendants in error, plaintiff in error had an opportunity to and did lease the premises to other parties at a greatly increased rental and covenanted to give possession to such parties at a period prior to the expiration of the lease held by defendants in error. The evidence further tended to prove that plaintiff in error connived against the defendants in error and their enjoyment of the possession under the lease, and by reason of her great wealth and influence employed many agencies to bring about a forfeiture of the lease by the defendants in error and to regain possession.
    The court treating the action as one ex delictu charged the jury that in addition to compensatory damages they might allow punitive damages, if they should conclude from the evidence that such damages ought to be allowed.
    The jury returned a verdict against the plaintiff in error in the sum of $125,000. Error was prosecuted to the court of appeals where the judgment was reversed for the reason “that the pleadings stated a cause of action to recover damages for the breach of a contract of lease, and the admission of evidence and charge of the court should have been limited to the issues thus made, and that the court erred in admitting evidence on the theory that the ease was one in which exemplary damages could be properly allowed, and in charging the jury on that theory of the case, and that the jury might include exemplary damages as a part of the verdict in case they found against the plaintiff in error; that the court erred in denying and in not granting the motion of plaintiff in error to direct the jury to return a verdict in favor of the plaintiff in error at the conclusion of defendant in errors’ case in chief, and in not receiving and in ruling out the evidence offered by plaintiff in error upon sur-rebuttal, and in not granting a new trial for such errors, and on the ground that the verdict was excessive, appearing to have been rendered under the influence of passion and prejudice.”
    Error is prosecuted here by all parties, but the ease is carried on the docket by the title Nettie Poe Ketcham, plaintiff in error, v. Frank F. Miller and Matthew R. Williams, defendants in error.
    
      Messrs. Tracy, Chapman & Welles, for plaintiff in error.
    
      
      Messrs. Marshall & Fraser, for defendants in error.
   Robinson, J.

Had the defendants in error tried their case upon the theory that they had averred the execution of a contract and the breach thereof, and that the petition sounded in contract, a reviewing court certainly would not have reversed for lack of necessary averments to state a cause of action ex comtractu.

The amended petition alleges title of the property to be in the plaintiff in error; alleges the authorization of the attorney in fact to execute a lease; alleges the execution of the lease to the defendants in error; sets out the lease and makes it a part of the petition; alleges the value of the lease to the defendants in error; alleges the breach by the plaintiff in error in an unlawful, forcible, wilful, wanton and malicious manner, and denominates it a breach; alleges that the plaintiff in error “has ever since held and now does so unlawfully, wilfully, wantonly and maliciously keep and hold said premises, and will continue to do so, and has prevented and does now and will prevent plaintiffs from using and enjoying the same, and from making and acquiring the profits and value of said lease, and from obtaining the said extension thereof, as plaintiffs desire to do; to the damage of these plaintiffs in the sum of $150,000.”

What is the gravamen of this complaint? Of what are the defendants in error complaining?

They do not complain of damage to or destruction of the building, the subject-matter of the lease, their property for the term; they do not complain of any injury to their effects; but they do aver that the value of the lease to them is $150,000, that they have been unlawfully, forcibly, wilfully, wantonly, maliciously and without their consent deprived of the benefits thereof, and ask judgment for damages in' that sum.

It is true the petition characterizes the breach as having been committed “unlawfully, forcibly, wilfully, wantonly, maliciously and without consent” of the defendants in error. Whát do these words add to thd averment of a breach? Generally speaking breaches are unlawful and ejectments are forcible ; most breaches are wilful, and perhaps but few are wanton and malicious; but do the words “wanton” and “malicious” transform ah exact averment of a breach of contract into an averment of the commission of a tort, or do they not in the connection here used charge the plaintiff in error with the commission of a breach, and attempt to emphasize it by averring that it was done in utter disregard of the rights of the defendants in error and with an evil and wicked purpose ?

While the facts in this case might well have justified a pleading charging a tort, we are unable from the amended petition itself to reach any other conclusion than that the gravamen of the complaint is the breach of the contract, and that the words “wilfully, wantonly, maliciously” add nothing thereto, and must have been intended by the pleader to characterize the motive and purpose of the perpetrator of the breach.

For these reasons we agree with the court of appeals that the pleadings stated a cause of action to recover damages for the breach of a contract of lease, that the admission of evidence and the charge of the trial court should have been limited to the issue thus made, and that the court erred in admitting evidence on the theory that the case was one in which exemplary damages could be properly allowed, and in charging the jury to that effect.

After the defendants in error had rested their case, the plaintiff in error made a motion to direct the jury to return a verdict in favor of the plaintiff in error. Whereupon the defendants in error, having admitted in their reply that they had not complied with certain of the covenants of the lease, and having averred in the reply that the plaintiff in error had waived the observance of such covenants, but having introduced no evidence to substantiate such waiver, offered to and were permitted over the objection of the plaintiff in error to offer as rebuttal proof tending to prove such waiver. Such evidence was not competent as rebuttal. There was no issue as to the breach of the particular covenants, the pleading having admitted the breach as to them. The issue was as to the waiver, made for the first time by the averments of the reply, and stood denied without further pleading. The proof of the waiver was a part of the case in chief of defendants in error; but in the interest of justice, in the exercise of sound discretion, a trial court may permit either party, after it has rested, to reopen the case and introduce further testimony, and upon this theory there was no error committed by the trial court in permitting the defendants in error to reopen their case and introduce the additional evidence.

Thereafter, the plaintiff in error, as sur-rebuttal. sought to offer evidence tending to refute the evidence of the defendants in error that plaintiff in error had waived the observance of certain covenants of the lease. The denomination of this evidence as sur-rebhttal did not affect its competency. The case having been reopened for the purpose of permitting the defendants in error to introduce additional evidence was reopened for the plaintiff in error for all purposes, and the refusal to permit such evidence was erroneous.

This court is not able to reconcile the averments of the amended petition, as to performance, with the confession and avoidance of the reply, but is unwilling in this case to render a judgment on the pleadings, and will affirm the judgment of the court of appeals, remanding the case to a court that can permit a revision of the pleadings.

Judgment affirmed.

Marshall, C. J., Johnson, Hough, Wanamakeb and Matthias, JJ., concur.

Jones, J., concurs in the syllabus, but favors judgment for plaintiff in error.  