Lowenburg v. Rosenthal

• Decision Date: 11 November 1889
• Parties: LOWENBURG et al. v. ROSENTHAL et al.
• Court: Oregon Supreme Court

22 P. 601

18 Or. 178

LOWENBURG et al. v. ROSENTHAL et al.

Supreme Court of Oregon

November 11, 1889

Appeal from circuit court, Multnomah county; SHATTUCK, Judge.

The respondents filed a complaint in the said circuit court, in which they alleged that the appellants and L. Rosenthal between the 1st day of January, 1885, and the 1st day of October, 1888, wrongfully took and carried away from the respondents' land, situated in said county of Multnomah certain fir timber, to the extent of 3,976 cords of wood and 1,520 railroad ties, of the aggregate value of $2,064, which taking and carrying away of said timber by appellants were without lawful authority; and that respondents had been damaged thereby in said sum of $2,064, and that they were entitled to treble the amount of said damages against the appellants, as provided by statute. The respondents filed an answer to the complaint, denying the material allegations contained therein; also set forth, as a further answer thereto, the following: "For a further and separate answer to said complaint, and as a counterclaim thereto, the defendants, [appellants,] answering herein, say: That on or about the _____ day of ______, A.D. 188_, the plaintiffs [respondents] and the defendants, [[appellants,] answering herein, entered into an agreement whereby plaintiffs [[respondents] promised and agreed with said defendants [appellants] last named that such defendants [appellants] should have all the downtimber upon said lands, which embraced and comprised nearly all the timber thereon; also the standing timber thereon; same to be cut up and used for defendants' [[appellants'] purposes, so answering herein; in consideration whereof said defendants [appellants] last named agreed with plaintiffs [respondents] that they would remove said timber off of and from said lands, and would cut up, supply, and deliver to and for plaintiffs' [respondents'] use such amount of cord-wood as should be required for use at a private residence in the city of Portland, during the time defendants [appellants] last named were cutting and removing said wood from said lands; and defendants [appellants] last named proceeded to cut and remove the wood from said lands in pursuance of said agreement, and did cut up and deliver of same for the plaintiffs, [[respondents,] at said private residence, 100 cords of wood, worth $3.50 per cord, and were proceeding to cut and remove the timber off of and from said lands in pursuance of said agreement, when plaintiffs [respondents] interfered and stopped and prevented last-named defendants [appellants] from completing their contract, and getting the remainder of said wood, and getting the benefit thereof; and such last-named defendants [appellants] say that they suffered loss and were damaged by reason thereof in the sum of $1,000; and further say that the wood so delivered at said residence, in the city of Portland, was of greater value than any timber got off and from said lands by $200; and the last-named defendants [appellants] claim from plaintiffs [[respondents] the said sum of $1,200, and pray that plaintiffs [respondents] may be ordered to pay the costs and disbursements incurred herein." The respondents filed a reply, denying the same.

The case was tried by a jury, who returned the following general and special verdict: To the question propounded to the jury by the court, "(1) Did the defendants take and carry off any timber or trees standing or being upon the lands alleged in the complaint?" the former returned the following answer: "We, the jury, answer, 'Yes.' " To the second question, "How many cords of wood did defendants take or carry off from said lands within the time alleged in the complaint, cut from trees or timber on said lands?" the jury gave the following answer: "3,800 cords." To the third question, "Have they [the defendants] lawful authority for taking such wood, timber, or trees?" answered, "No." To the fourth question, "What was the value of timber taken from said land by defendants?" answered, "$380." To the fifth question, "Had the defendants probable cause to believe, and did they believe, when they carried off wood from the land in question in this case, that the owners of the land had authorized them to take and carry away said wood?" answered, "Yes." Signed, "C.W GAY, Foreman." Underneath the signature of the foreman was the following memorandum, made by the jury:

3,800 cords of wood, at 10c ..................... $380

100 cords, delivered to Mr. Fleishner, @ $3.50 ... 350

----

Bal due plaintiff ............... $ 30

This special finding was followed by a general verdict, the substance of which is as follows: "We, the jury in the above-entitled cause, find for the plaintiffs in the sum of thirty dollars, ($30.)" Signed by all the jurors. Thereupon the respondents' counsel filed a motion for judgment on the special findings of the jury, notwithstanding the general verdict of the jury, as follows: "That plaintiffs have judgment against defendants for treble the damages assessed by the jury, as shown by the said special findings." Said motion was afterwards heard by the court, who made the following order and adjudication thereon "And it now appearing to the court by such special findings that the defendants entered upon the lands of the plaintiffs described in the complaint without lawful authority, and cut and removed therefrom timber cut into cord-wood, to-wit, 3,800 cords, and that the said wood was worth $380, it is now, therefore, ordered and adjudged that said plaintiffs have and recover of and from said defendants treble the said damages to said plaintiffs, to-wit, $1,140, and their costs and disbursements;" which is the said judgment appealed from.

(Syllabus by the Court.)

The special findings of a jury are inconsistent with their general verdict when the former, as a matter of law, will authorize a different judgment from that which the latter will.

The transaction out of which a counter-claim may arise, as provided in subdivision 1, 73, Civil Code, must be some business affair between parties whereby mutual and reciprocal obligations are created.

A counter-claim cannot arise out of a mere trespass committed by a defendant in wrongfully taking and carrying away the property of the plaintiff. And where, in an action by certain plaintiffs against certain defendants, for an alleged wrongful taking, carrying away, and conversion of certain wood and timber, standing and being upon the land of the former, for which they alleged damages in a certain amount, and claimed to recover treble the amount, under the statute, the defendant set up, by way of counter-claim, an alleged agreement, whereby the plaintiffs promised the defendants that the latter should have all the wood and timber to be cut and used by them, for the consideration that they would remove it off the land, and would deliver for the use of plaintiffs such an amount of cord-wood as should be required for use at a private residence in the city of P. during the time defendants were cutting and removing the said wood and timber; that in pursuance of the said agreement the defendants proceeded to cut and remove the said wood and timber; that they cut and delivered 100 cords thereof for plaintiffs at said private residence, and were engaged in the performance of their said contract, when the plaintiffs interfered and stopped them from cutting it, and getting the benefit thereof, to their damage of $1,000, which they claimed, together with the value of the 100 cords of wood delivered, as against the plaintiffs' said claim: Held, that the matter so pleaded, if true, would establish a license and justification for the defendants' taking and carrying away the wood and timber complained of, but whether the matter constituted a counter-claim or not, query.

Held, further, however, that the jury, having specially found the fact that the taking and carrying away of the wood and timber by the defendants were unlawful, it disproved the matter alleged as a counter-claim, and that, if pleadable as such, it would not avail the defendants, as they had no counter-claim to plead. But the jury having found that the 100 cords of wood was delivered to plaintiffs, and that it was a part of the wood and timber taken and carried away, as the court must conclude they did find, from the special findings and verdict returned, it should have been allowed in mitigation of the damages for the amount of wood and timber found by the jury to have been taken and carried away unlawfully.

Held, further, that the finding by the jury that the defendants took and carried away the wood and timber unlawfully, entitled the plaintiffs, under section 338, Civil Code, to treble damages, notwithstanding the jury also found that the defendants had reasonable cause to believe, and did believe, that they had authority from the plaintiffs to so take and carry it away.

That section 339, Civil Code, provides the only circumstances which may prevent a recovery of treble damages under section 338 thereof, in a case where the provisions of the latter section would otherwise be applicable.

C.J. McDougall, for appellants.

J.H. Woodward, for respondents.

THAYER, C.J., (after stating the facts as above.)

If the special findings in this case are inconsistent with the general verdict, they must, of course, control it. Whether they were so inconsistent or not depends, I suppose, upon the question as to whether they would authorize a different judgment in the action than the general verdict would. The latter only authorized a judgment for $30. The special findings established the fact that the appellants took and carried away timber, or trees standing or being upon the respondents' land, to the amount of 3,800 cords of...