Columbia Land & Mining Co. v. Tinsley

• Decision Date: 18 December 1900
• Citation: 60 S.W. 10
• Parties: COLUMBIA LAND & MINING CO. v. TINSLEY. [1]
• Court: Kentucky Court of Appeals

60 S.W. 10

COLUMBIA LAND & MINING CO. v. TINSLEY. ^[1]

Court of Appeals of Kentucky.

December 18, 1900

Appeal from circuit court, Lyon county.

"Not to be officially reported."

Action of trespass by the Columbia Land & Mining Company against John Tinsley to recover the value of timber cut by defendant from plaintiff's land. Judgment for defendant, and plaintiff appeals. Affirmed.

Bishop & Hendrick, Wilson & James, John W. Ray, and C. P. Chenault for appellant.

Molloy & Utley and Breathitt & Fowler, for appellee.

HOBSON J.

Appellant the Columbia Land & Mining Company, a corporation created under the laws of the state of Maine, owns a tract of 5,560 acres of land in Lyon county, Ky. and filed this suit against the appellee, John Tinsley, alleging that he had wrongfully and without right or authority entered upon the land with a great number of men in his employ, and cut down and converted to his own use a great number of oak, hickory, gum, walnut poplar, and other trees of the value of $10,000, for which judgment was prayed against him. Appellee answered denying that he had entered or cut the timber without right, but alleged that he had cut certain oak, hickory, and poplar timber from the land of value $2,580, and that this he did by the sanction, permission, and authority of appellant, and by virtue of certain contracts of sale made by it with him; that he had paid appellant the contract price for the timber; and that he had cut it in good faith, supposing that he had a right to do so. Appellant afterwards amended its petition, and placed its damages at $30,000. The case was referred to a jury. A large mass of evidence was introduced on both sides, and at the conclusion of the testimony the court instructed the jury, in substance, that the contracts under which appellee had cut the timber were void, because the agent who made the contracts had no written authority to sell the timber; and that they should find for appellant the market value of the timber he had cut as it stood upon the land. On his motion the court also instructed the jury that, if appellant had received any part of the money paid by appellee to the agent for the timber, they should consider the amount so received in estimating the damages. Under these instructions the jury returned a verdict for appellee.

A number of errors are relied on for reversal, growing out of the admission of testimony as to the authority of T. F Abildguard, the agent of appellant who made the contracts with appellee under which the timber was cut. It is insisted that the court should not have allowed these contracts to be read to the jury; also that the court erred in allowing certain letters read, which were introduced for the purpose of showing that appellant was apprised of what Abildguard was doing. Appellee introduced a good deal of evidence, including certain declarations of Abildguard, which tended to show that he was the general agent for appellant in this state. All this was objected to. We deem it unnecessary to pass upon any of these objections, for the reason that the instructions of the court took from the jury all question of the authority of Abildguard, and appellant could not, therefore, have been prejudiced by this evidence. The bank account of Abildguard was properly admitted in evidence to show what had become of the money which appellee had paid him for the timber. The action was in trespass, and it was proper for the defendant to give in evidence all the facts showing his good faith; for, although he might not make out a justification, he might show that he had acted in good faith, and not wantonly. The proof is very conflicting as to the value of the timber, and is not entirely clear as to what Abildguard did with the money appellee paid him. It is evident that much of it was paid out for appellant, and on the whole case we do not deem it proper to disturb the verdict of the jury. The finding of the jury is, in substance, that the timber was worth no more than the contract price, and that this had been paid to appellant. Abildguard paid out for appellant a large amount of money. He had no means of getting money to such an extent, as appellant must have known, except from the sale of this timber. The contracts extended over several years, and the money paid by appellee was carried into a bank account, from which the expenses of appellant's business in the state were paid. We think the facts shown by the record were sufficient to put appellant's superior officers on notice of what was going on, and we are by no means satisfied that Abildguard had not authority in fact to do all that he did. He testifies as a witness for appellant that he thought at the time he had the authority; that his authority was contained in certain letters written him by the company; but these, when requested by appellee, he refused to file with his deposition. After this his deposition was retaken by appellant, and he then stated that he had no...