Bradley Land & Lumber Co. v. E. Mfg. Co.

• Decision Date: 10 July 1908
• Citation: 104 Me. 203,71 A. 710
• Parties: BRADLEY LAND & LUMBER CO. et al. v. EASTERN MFG. CO.
• Court: Maine Supreme Court

71 A. 710

104 Me. 203

BRADLEY LAND & LUMBER CO. et al.

v. EASTERN MFG. CO.

Supreme Judicial Court of Maine.

July 10, 1908.

(Official.)

Exceptions from Supreme Judicial Court, Penobscot County.

Trover by the Bradley Land & Lumber Company and others against the Eastern Manufacturing Company. Verdict for plaintiffs, and defendant excepts. Exceptions sustained.

Trover brought by the plaintiffs against the defendant to recover the value of 9,555 spruce logs, containing 869.470 board feet, alleged to have been converted by the defendant. These logs were cut by one Charles W. Mullen on the plaintiffs' land, under a written permit, and by him were sold to the defendant. The defendant seasonably notified Mullen to come in and defend the action, and he appeared and assumed the defense. "The defendant pleaded the general issue and a brief statement setting up the title to the logs and lumber in Charles W. Mullen," and also stated therein certain alleged facts in reduction of damages.

Tried at the October term, 1900, Supreme Judicial Court, Penobscot county. At the conclusion of the testimony, the presiding justice directed the jury to return a verdict for the plaintiff for the value of the logs at the time of the conversion, and interest from the date of the writ, amounting in all to $14,656.33. The defendant excepted to this ruling, and also to certain rulings during the trial, whereby certain evidence offered by the defendant was excluded.

The case is stated in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, CORNISH, and KING, JJ.

F. H. Appleton and Hugh R. Chaplin, for plaintiffs.

P. H. Gillin and J. F. Gould, for defendant.

EMERY, C. J. The plaintiff landowners and Charles W. Mullen made an agreement in writing in the form known as a "permit," by which Mullen was to enter upon certain timber land of the plaintiffs and cut and remove therefrom and drive to market certain kinds of timber, and pay therefor a fixed stumpage price per M. In the permit were various stipulations. Mullen was to cut all the burnt timber on the land during the lifetime of the permit, and all the burnt timber left uncut was to be scaled and was to be paid for by Mullen according to the terms of the permit. The stumpage was to be paid in full by July 1st of each year, and all the other requirements of Mullen in the permit were to be performed by him, and it was further stipulated that all the logs and timber cut on the land should remain the property of the plaintiffs until stumpage bills were paid "and all other matters pertaining to this license were fully adjusted"; also that, if all these were not done within 10 days after July 1st, the plaintiffs might "take possession of and sell at either public or private sale for cash any or all of the lumber cut under this permit wherever situated and whether manufactured or not, and, after deducting reasonable expenses, commissions, and all sums which may then be due or may become due from any cause whatever as herein expressed, the balance, if any there be, they shall pay over on demand to said grantee after a reasonable time for ascertaining and liquidating all amounts due or which may become due either as stumpage or damages."

Under this permit Mullen entered on the land each year, and cut and hauled and drove to market a quantity of logs and lumber. A part of these, viz., 9,555 spruce logs, he sold to the defendant. The plaintiffs afterward, claiming that the stumpage had not been paid and other stipulations of the permit had not been performed, made a demand on the defendant for the logs, which not being complied with they brought this action to trover against the defendant for conversion of the logs. Upon notice from the defendant, Mullen appeared and assumed the defense of the action.

At the trial the principal, if not the only, controversy, was over the matter of the burnt timber named in the permit. The plaintiffs claimed that a large amount of burnt timber which Mullen was bound by the terms of the permit to cut and pay for, or bound to pay for if left uncut, was left uncut and not paid for. Mullen claimed that he had not left uncut any burnt timber within the terms of the permit. The defendant claimed and offered evidence to show that the full amount due the plaintiffs from Mullen for all damage of any kind due them under the permit was $5,166.55, and asked to have the question of those damages determined in this action of trover. The court excluded the evidence, and instructed the jury to return a verdict for the plaintiffs for the full value of the logs at the time of the conversion, and interest from the date of the writ, which amount was $14,656.33. To these rulings the defendant excepted.

To sustain these rulings we would need to hold that the transaction between the plaintiffs and Mullen as evidenced by the written...