Gustin v. Jose

• Decision Date: 07 March 1895
• Parties: GUSTIN ET AL. v. JOSE ET AL.
• Court: Washington Supreme Court

39 P. 687

11 Wash. 348

GUSTIN ET AL. v. JOSE ET AL.

Supreme Court of Washington

March 7, 1895

Appeal from superior court, King county; R. Osborn, Judge.

Action by Samuel D. Gustin and others against Thomas Jose and another. There was a judgment for plaintiffs, and defendants appeal. Affirmed.

Hoyt C.J., dissenting.

C. W. Turner, for appellants.

John G Barnes, for respondents.

DUNBAR J.

This is an action brought by the respondents for damages for the unauthorized and unlawful cutting of timber by the appellants off land alleged to be the land of respondents. The latter recovered judgment for the sum of $1,748.42, from which judgment the appeal is taken to this court.

Under the pleadings in this case, many of the exceptions taken seem to us to be taken entirely without warrant of law or reason. The proof of ownership of the land was ample, and the testimony rightly admitted. The fact is that the only material issue in this case was the value of the property taken; the defendants admitting in their answer that they cut and removed from the land described in the complaint a certain amount of timber, but alleging that it was so cut and removed by them under a license from plaintiffs, and by an agreement between the plaintiffs and themselves that the defendants were to pay plaintiffs for said timber at a certain price, to wit, 50 cents per 1,000 feet. They also allege a further agreement, made after the cutting of the timber, that the price of the timber taken should be $784, to be paid in cedar logs; and that afterwards, pursuant to said agreement, defendants delivered to plaintiffs a certain number of logs reasonably worth $146.25, afterwards refusing to receive the remainder of the logs. The reply of the plaintiffs denied the license or authorization of any kind, or that there was any contract as to value, or that they had ever agreed to or had received any cedar or any logs in payment of their demand. So upon this issue the case went to trial.

There are, however, two exceptions which we think should be especially noticed. During the testimony of witness Guilfoil a certain plat of the land from which it was alleged the timber was taken was introduced by the plaintiffs, and its introduction was objected to by the defendants. It is claimed here in the argument of the case that this plat was objectionable, from the fact that, in addition to the description of the land, the number of trees that were alleged to have been taken was marked on the plat, and also the computation of the number of feet cut by the defendants. This is the objection, and all the objection, that is raised in this court to the admission of this plat. The plat, we think, was evidently objectionable; and had it been admitted over the objections of the appellants, for the reasons urged here, it would warrant a reversal of this case. But an investigation of the record shows that the objection to the admission of the plat was not to the plat itself, but to the competency of the person offering it to make the same. After the witness had testified that he had made a rough plat of the land described in the complaint, the plaintiffs then offered the plat in evidence, and the following colloquy ensued: "Mr. Turner (appellants' attorney): Mr Guilfoil, you say that you have been a contractor and logger for the past four and a half years? Ans. I have been a logger for the past four and a half years; previous to that time, a railroad contractor. Q. Are you a civil engineer by profession? A. No, sir. Mr. Turner: I object to the introduction...