Waverly Timber & Iron Co. v. St. Louis Cooperage Co.

• Decision Date: 29 November 1892
• Citation: 20 S.W. 566,112 Mo. 383
• Court: Missouri Supreme Court
• Parties: WAVERLY TIMBER & IRON CO. v. ST. LOUIS COOPERAGE CO.

20 S.W. 566

112 Mo. 383

WAVERLY TIMBER & IRON CO. v. ST. LOUIS COOPERAGE CO.

Supreme Court of Missouri, Division No. 2.

November 29, 1892.

CONVERSION — AMENDMENT OF COMPLAINT — ERROR — MISTAKE OF AGENT AS A DEFENSE.

1. Plaintiff brought action for the conversion of timber cut from its lands. The evidence showed that the greater part of the timber was taken from lands not described in the complaint. Held, that an amendment of the description to include this portion, which only had the effect of making more specific the general averment, was improperly denied.

2. Defendant having received the timber from its agents, and appropriated the same, it is no defense that the agents thought they were cutting on another person's land.

Appeal from St. Louis circuit court; JAMES E. WITHROW, Judge.

Action by the Waverly Timber & Iron Company against the St. Louis Cooperage Company for conversion. Judgment for defendant. Plaintiff appeals. Reversed.

Frank, Dawson & Garvin, for appellant. Kehr & Tittman, for respondent.

GANTT, P. J.

This is an action for damages alleged to have been caused by the conversion of certain timber, staves, and headings cut and made, without consent of plaintiff, from certain lands owned by it, "lying and situate in civil districts one and eleven, in Humphreys county, in the state of Tennessee, and more particularly from that portion of the plaintiff's said tract of land located north of Turkey creek, south of White Oak creek, west of the west boundary line of what is known as the `John Brown Tract,' and east of what is known as the `River Road,' which road, at this place, runs parallel with and east of the Tennessee river, in said county of Humphreys and state of Tennessee." The petition is in three counts. The first alleges a conversion between October 15, 1885, and January 1, 1887, to the amount of $1,500; second, a like conversion during the year 1887, to plaintiff's damage; and, third, a like conversion in June and July, 1888, and throughout 1888, until September 14, 1889, when this action was commenced, amounting to $2,800 in damages. The answer was a general denial. The cause was tried November 18, 1890. On the calling of the cause for trial, November 18, 1890, plaintiff asked leave of court to amend its petition by inserting after the words, "east of Tennessee river," above, the following words: "And from the land lying south of the Turkey creek, and what is known as `Montgomery Grant,' just south of land of W. Duffel's heirs," — in order to conform the pleadings with the proof in the depositions on file. The motion to amend was overruled by the court and exceptions taken by plaintiff. Plaintiff offered in evidence and read two deeds, one from Joseph Frank and wife and Augusta Richards and wife to the Waverly Timber & Iron Company, of date February 2, 1888, conveying by metes and bounds 17,353½ acres in Humphreys county, Tenn., and one from T. U. Haris and wife to Frank & Richards, both duly recorded. It is admitted that the above deeds cover and embrace the land in the petition. Among other witnesses, J. A. Summers, testified in a deposition filed October 13, 1890, that he cut 102 white oak trees on this land south of Turkey creek. He cut this timber for the defendant, and shipped it to defendant at St. Louis. Mrs. Duffel claimed the timber and sold it to him. He showed McCullom the trees he cut. McCullom testified these trees were cut on plaintiff's land. The evidence tended to show this was the larger part...