Mine Lamotte Lead And Smelting Company v. White

• Decision Date: 12 April 1904
• Parties: MINE LaMOTTE LEAD AND SMELTING COMPANY, Appellant, v. WHITE, Respondent
• Court: Missouri Court of Appeals

80 S.W. 356

106 Mo.App. 222

MINE LaMOTTE LEAD AND SMELTING COMPANY, Appellant, v. WHITE, Respondent

Court of Appeals of Missouri, St. Louis

April 12, 1904

Appeal from Madison Circuit Court.--Hon. R. Anthony, Judge.

REVERSED AND REMANDED.

STATEMENT.

Replevin for 10,337 feet of pine timber alleged to have been manufactured by White, the defendant, from trees he felled on land belonging to the plaintiff. Plaintiff acquired title to the land March 1, 1903, by deed from Samuel H. Leathe.

These admissions were made by the parties at the trial:

"It is admitted that the title to all the land described in plaintiff's petition was vested in Samuel H. Leathe by deed dated April 10, 1897.

"It is admitted that the plaintiff in this case, the Mine LaMotte Lead and Smelting Company, bought the lands described in plaintiff's petition from one Samuel H. Leathe, for a valuable consideration and received a deed, the deed read in evidence here, for such property, on the first day of March 1903, and that the plaintiff at the time of making such purchase and receiving the deed had no notice that the defendant, R. E. White, had or claimed any interest in the timber which he had cut from this land since the first day of March, 1903."

Leathe's deed to the plaintiff bore another date than March 1, 1903 but by force of the above stipulation the title to the land is to be taken, for the purpose of this action, as having vested in the plaintiff on that day. Defendant's own testimony proved he cut a great deal of timber, from which the lumber in controversy was manufactured, after that date. He defends on the ground that he owned the trees by purchase from one W. J. Burnley, who had previously purchased them by written memoranda from Samuel H. Leathe, who may be denominated, for convenience, the common source of title. White's claim to the trees was founded on these facts: J P. Gabriel testified that in 1897 he became acquainted with Maj. C. F. Stephens, whom he describes as "general manager" for Samuel H. Leathe; that Stephens employed him to look after Leathe's land in Madison county and gave him verbal authority to sell the timber on it whenever he thought it prudent to do so; that pursuant to said authority he (Gabriel) sold the pine timber on the land mentioned in the petition to W. J. Burnley for $ 225, which money was paid to Stephens; that he leased to Burnley a mill site September 18, 1901, at $ 18 a year, the term to expire in October, 1903; that he gave Burnley written memoranda showing what timber was sold to him and a lease of the mill site. Burnley corroborated Gabriel's testimony as to the purchase of the timber and the lease of the mill site and testified that he sold those properties to the defendant White in April, 1902, for $ 1,150; that the sale was a verbal one, but he turned over to White the memoranda of his purchase from Gabriel. Said memoranda were never acknowledged or recorded. They are recited in the bill of exceptions as follows:

"A plat of township 32, range 7, on which are marked in red the lands where defendant cut the timber in controversy, and on the bottom of which plat is the following indorsement:

"'This is to certify that I have conditionally sold the timber on the land marked red belonging to Mine LaMotte Company; all other parties are notified to keep off the land so marked.

"'J. P. GABRIEL, Agent for M. L. M.

"'Received one hundred dollars in full payment for all saw timber on fourteen forties marked red.

"J P. GABRIEL, Agent for M. L. M.'

"Fredericktown Mo., Oct. 16, 1901.

"This is to certify that I have this day leased to W. J. Burnley a sawmill site in section 28, township 32, range 7 east, in Madison county, Missouri, for the sum of eighteen dollars a year, payable in advance, the lease to run one year with the privilege of three years, from this date for the sum of eighteen dollars for each year payable in advance. He also has the right to cut all saw timber on sections 21, 22, 27, 28, 29, township 32, range 7, belonging to the Mine LaMotte Company during the term of this lease.

"J. P. GABRIEL, Agent for Mine LaMotte."

The following letter was put in evidence by the defendant:

"Fredericktown, Mo., Dec. 15, 1902.

"R. E. White, Esq.,

"Dear Sir: Your letter at hand. I received $ 17; my contract with Mr. Burnley was $ 18 a year. Send me one dollar more and this shall be your receipt for mill site. I have not sold any hub timber to any one. Please notify any and all to keep off or Mine LaMotte Company will prosecute them to the full extent of the law. All timber ten inches in diameter was reserved.

"Yours truly,

"J. P. GABRIEL."

Plaintiff objected to the admission of those documents for these reasons: Gabriel had no written authority from Leathe to sell any of the timber nor to lease the real estate; the documents show on their faces that Gabriel was pretending to act as the agent of the Mine LaMotte Company and not as agent of Leathe, and the documents were inadequate to pass any interest in the land or the timber standing on it. An exception was saved to the admission of the memoranda and the letter.

Plaintiff requested these instructions, the first one without the italicized portions:

"1. The court instructs the jury that the deeds and records of deeds read in evidence by plaintiff vested in plaintiff on March 1, 1903, the legal title to the lands described in plaintiff's petition.

"If you find and believe from the evidence that the lumber delivered by the defendant to the sheriff of Madison county, Missouri, was sawed and manufactured from timber cut from the above-described lands by the defendant or his employees since the first day of March, 1903, then your verdict should be for the plaintiff, unless you further find and believe that at the time plaintiff purchased and received its deed for said real estate, it knew of defendant's claim to the timber from which said lumber was manufactured, or that defendant prior to the purchase by plaintiff on March 1, 1903, had taken possession of the above lands for the purpose of cutting timber thereon, and was in possession and so engaged at the time of plaintiff's purchase of said lands.

"2. The court instructs the jury that if they find and believe from the admissions made by defendant in open court and by the evidence in this cause that the plaintiff purchased the real estate described in plaintiff's instruction numbered one, on or before March 1, 1903, and at said time paid a valuable consideration for said real estate and received from one Samuel H. Leathe a warranty deed for said property, and that at the time of said purchase plaintiff had no knowledge that defendant claimed the timber from which the lumber in controversy was manufactured, then you will find that the leases and other title papers introduced by the defendant constitute no defense to plaintiff's suit for lumber which was manufactured from timber cut by defendant from said real estate after March 1, 1903.

"3. If you find from the evidence that the lumber delivered by the defendant to the sheriff of Madison county, Missouri, was sawed and manufactured out of timber cut from the lands described in plaintiff's instruction numbered one and that said timber was cut by defendant or his employees since the first day of March, 1903, then your verdict should be for the plaintiff.

"4. If the jury find and believe from the evidence that any part of the lumber delivered by the defendant to the sheriff of Madison county, under the writ issued in this case, was sawed and manufactured from timber cut by the defendant or his employees since March 1, 1903, from the real estate described in instruction numbered one, then you will find the issues for plaintiff for so much of said lumber as you may find was manufactured from timber cut by defendant since March 1, 1903."

The court refused to give the first instruction in the form in which it was requested, but added the italicized appendix and gave it in that form. The other instructions requested by the plaintiff were refused.

At the instance of the defendant and over the objection of the plaintiff, the court gave this instruction:

"The court instructs the jury that if they believe and find from the evidence that Samuel H. Leathe by J. P. Gabriel, his agent, provided you find he was his agent, sold the said timber standing and growing on the land in controversy by means of written memoranda for a valuable consideration to J. W. Burnley, which consideration was paid in full by Burnley and accepted by Mr. Leathe, then it was no concern of plaintiff company or Leathe whether Burnley cut and manufactured the timber into lumber or whether defendant did it, and therefore plaintiff is not entitled to recover in this action, provided you further find that defendant was in the possession of the land and had the right to be in possession by virtue of his contract or license with and from the said Burnley of said land, and that he had cut and manufactured said trees into the lumber replevied, before the suit was filed by plaintiff May 16, 1903, in this behalf."

Of its own motion the court gave the following instruction:

"Unless you believe from the evidence that the witness J. P. Gabriel was the agent of Samuel H. Leathe and as such was authorized by the said Leathe or his general manager to sell the growing timber on the lands described in plaintiff's petition, that in pursuance of such authority, if any he had, he sold the timber on the land in question to one Burnley by a written instrument; that he received the purchase price in full for said timber and transmitted same to said Leathe or his general manager, and that afterwards said Burnley sold and transferred to the defendant for a valuable consideration his...