On appeal from the District Court of the First Judicial District of the county of Burlington.
For the appellants, Amos M. Waln.
For the appellee, Davis & Davis (James Mercer Davis, of counsel).
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The gravamen of plaintiff's suit, although styled in contract, to recover damages, is that defendants did,
on April 25th, 1935, "willfully and maliciously" destroy his growing crop of rye, by ploughing it under, "in defiance of his right thereto."
It appears that Elmer Smires and his wife, were tenants by the entireties of a farm near Browns Mills, Burlington county, New Jersey. They had executed a note, secured by a mortgage on the farm, to the Safeguard Finance Company. Subsequent to the execution and delivery of the note and mortgage, on March 25th, 1934, Smires and his wife gave a writing (Exhibit P-1), to plaintiff, renting said mortgaged farm to him. It is a peculiarly worded instrument and reads in this manner:
This 25 day of March 1934
We Margaret & Elmer Smires has agreed to rent to Lyman Eckman their farm containing 46 acres on road leading from Browns Mills to Lewistown one & 1/2 miles from the former place. For the consideration of one dollar $1.00 and other valuable considerations for general farm crop purposes. and it is further understood the ground which is farmed during the farming season shall be sown down in the fall with rye or other cover crop, and further understood that at least 10 acres of this cover crop shall be rye and shall remain in the ground and be harvested the following Summer or all of the cover crop may be rye and used for harvesting if Mr. Eckman So desires.
(Signed) MARGARET SMIRES.
Plaintiff, by virtue of this instrument, entered into possession of the farm. It is conceded that thereafter, on September 18th, 1934, the Safeguard Finance Company recovered a judgment against the Smires, on their note, secured as aforesaid, in the District Court of the First Judicial District of the county of Burlington, in the ...