Wing v. Milliken

• Decision Date: 26 February 1898
• Citation: 91 Me. 387,40 A. 138
• Parties: WING v. MILLIKEN.
• Court: Maine Supreme Court

40 A. 138

91 Me. 387

WING

v. MILLIKEN.

Supreme Judicial Court of Maine.

Feb. 26, 1898.

(Official.)

Report from supreme judicial court, Androscoggin county.

Action by George C. Wing against George Milliken. On report. Judgment for plain tiff.

J. A. Morrill, for plaintiff.

J. P. Swasey and E. M. Briggs, for defendant.

FOSTER, J. Trover to recover the value of 150,000 feet of sawed birch spool lumber. The lumber in question was cut upon lots 2, 3, and 101, in Franklin plantation, by one George B. Staples, who was owner in common with the plaintiff; the plaintiff's interest being two-thirds, undivided, of the lots above named. Staples had an interest in other adjoining lands, and the winter's operation amounted to about 1,000 cords cut and hauled to Staples' mill in the plantation, and there manufactured into spool strips. It appears that 240 or 245 cords of this amount was cut and hauled from land of which the plaintiff owned two-thirds in common. The cutting by Staples' men upon this land owned in common was unintentional, but wholly without the plaintiff's knowledge or consent.

It is not claimed that there was any conversion by this defendant until it was manufactured into spool stock. There is no testimony that the defendant exercised any dominion or control over the birch until after it had been sawed up and stacked, ready for sorting and shipment.

The fact that the plaintiff was tenant in common with others of the property converted constitutes no legal defense to this action, and it is available only in abatement, or by apportionment of the damage. Holmes v. Sprowl, 31 Me. 73, 76.

The defendant had a contract with Clark & Service, of Glasgow, Scotland, to sell them 200,000 superficial feet, board measure, of white birch spool bars for export. This company was afterwards reorganized, and became incorporated as Clark, Skillings & Co., Limited, and was doing business in Glasgow and in Boston. The new company assumed and signed the contract made by Clark & Service with the defendant An agent of the latter company, by the name of Bryant, was sent to the defendant for directions where to find the spool lumber which he was to inspect and bunch under the contract with Clark, Skillings & Co., Limited. The defendant sent him to the place where the lumber was stacked, and put him in charge "to cull it and ship it" Acting as the agent of that company, he inspected, culled, and bunched the lumber, and took all that was of a quality that complied with the contract which his firm held, amounting in all to 187,627 feet This agent took his directions from the defendant. It is clear from the evidence that the defendant, when this agent went there, exercised full control and ownership over the spool stock, gave directions what to do, and that prior to that time he had had nothing to do with the lumber.

The testimony further shows that the defendant also sold from the lumber, after it had been culled, to Merrill & Co., of Dixfield, 107,216 feet.

Here, then, was a conversion by the defendant of the lumber in which the plaintiff had an interest, unless some justification can be shown. No justification is shown by any license or permission from the plaintiff.

It is contended, however, that the defendant was acting as the agent of his brother, Charles R. Milliken, who had succeeded to the interest of George B. Staples in the birch in which the plaintiff was interested. But, if this contention be true, it affords no protection to him. This court has held that in an action of trover it is no defense that the defendant acted as the agent or servant of another, who was himself a wrongdoer. McPheters v. Page, 83 Me. 234, 22 Atl. 101. And it is there held that, if he has exercised a dominion over personal chattels in exclusion or in defiance of, or inconsistent with, the owner's right, that in law, is a conversion, whether it be for his own or another person's use. Kimball v. Billings, 55 Me. 147, 151; Freeman v. Underwood, 66 Me. 229, 233. The same doctrine is laid down in other jurisdictions. Williams v. Merle, 11 Wend. 80; Coles v. Clark, 3 Cush. 399; Gilmore v. Newton, 9 Allen, 171; Courtis v. Cane, 32 Vt. 232. In some of these cases it has been held that an auctioneer or broker, who sells property for one who has no title, and pays over to his employer the proceeds, with no knowledge of the defect of title or want of authority, is held to be liable for its conversion to the real owner. Robinson v. Bird, 158 Mass. 357, 360, 33 N. E. 391.

The acts of the defendant in reference to this lumber, in causing it to be sorted, culled, and bunched, and a large portion of it there afterwards sold to two different parties by this defendant, constituted acts of dominion and ownership over the same in exclusion, defiance of, or inconsistent with, the plaintiff's interest and ownership therein.

Nor do we think from the testimony, as reported, that the plaintiff is estopped, by any transactions of his with George B. Staples in relation to the taking of timber from other lands in which they were interested, from maintaining this action against the defendant. From those acts in reference to other logging transactions, even though the plaintiff was interested with Staples therein, there was no such relation of the parties as would authorize any one legitimately to infer that Staples was the plaintiff's agent in reference to this lumber in question, and to deal with him as with one clothed with authority, or to be justified in believing that he had authority to make any disposition of it to the exclusion of the plaintiff's rights. The facts reported create no estoppel as against the plaintiff. This property in question was never, through any act of the plaintiff, placed in the hands of Staples, or this defendant, as bailee or otherwise, for the purpose of being disposed of, thereby creating an estoppel against the plaintiff from asserting any rights against a bona fide purchaser.

The only remaining question is in relation to damages.

The defendant's acts of dominion and ownership had reference to the 240 or 245 cords of lumber, notwithstanding he participated in the sale of but two lots,—that to Clark, Skillings & Co., Limited, and to Merrill & Co. The whole was culled in order to obtain the amount which was sold to Clark, Skillings & Co., Limited, and the entire quantity was thereby greatly diminished both in quality and value. The remainder, after these sales, was disposed of by Charles R. Milliken to other parties.

The measure of damages, ordinarily, in an action of trover, is the value of the property at the time of conversion, with interest from the time when the cause of action accrues. Ice Co. v. Webster, 62 Me. 341, 362; Johnson v. Sumner, 1 Mete. (Mass.) 172, 179; Glaspy v. Cabot, 135 Mass. 435, 440.

In the present case we are unable to perceive any reason for departing from the general rule, and allowing; damages only for the value of the birch when severed from the land, as contended by the defendant.

We have given the question considerable attention, and examined the authorities relied upon in support of the proposition set up in reduction of damages, but we feel that the present case is one where any rule other than the value of the property at the time of conversion does not apply.

It has sometimes been held that, where timber has been cut by trespassers, and the trespass was involuntary, and not willful, the owner should recover his actual loss, and not the increased value added by the trespasser. Such was the case of Foote v. Merrill, 54 N. H. 490, but that...