Myers v. Taylor

• Citation: 64 S.W. 719
• Parties: MYERS et al. v. TAYLOR et al.
• Decision Date: 15 June 1901
• Court: Supreme Court of Tennessee

Page 719

64 S.W. 719

MYERS et al. v. TAYLOR et al.

Supreme Court of Tennessee.

June 15, 1901.

Error to circuit court, Shelby county; L. H. Estes, Judge.

Action by Taylor & Crate against D. E. Myers and others. From a judgment in fafor of plaintiffs, defendants bring error. Reversed.

Percy & Watkins, for plaintiffs in error. Myers & Banks and Wilkerson & McGehee, for defendants in error.

BEARD, J.

This action was brought by defendants in error against the plaintiffs in error for the alleged conversion by the latter of 200,000 feet of lumber, of which the former (Taylor & Crate) claimed to be the owners. The conversion complained of was made through a replevin suit instituted by the plaintiffs in error in a court of record of the state of Arkansas, within which jurisdiction the lumber was then located. To this suit Taylor & Crate were not parties. The theory of the defense was that the lumber in controversy was made by one Morrison, at his sawmill in Arkansas, from logs cut from trees taken from the lands of the defendants in that state, under a special contract by which the defendants were to retain title until Morrison had paid them "stumpage," or the full price of the logs so taken, and that their possession of the lumber was rightful, inasmuch as the stumpage was still due. On the other hand, the contention of the plaintiffs below was that they had purchased the lumber from Morrison, who had the unrestricted right to sell the same, and that the caption by the defendants, through their replevin suit, of this lumber, and subsequent sale thereof, was a conversion. The trial below resulted in a verdict and judgment for the plaintiffs. The defendants have brought the suit to this court, and have assigned 17 errors upon the action of the circuit judge. The last 8 of these errors are based on the refusal of the court to grant as many special requests. These assignments, however, will not be considered, as the record affirmatively shows that the requests were submitted to the trial judge before he gave his general charge, and not afterwards, as has been often declared is the correct practice. Of the remaining 9 assignments only the seventh and eighth will be noticed, as they are determinative of the case in this court, and the others are immaterial.

The seventh assignment of error is upon the action of the court in refusing to let the witness Morrison testify as to the terms of the contract between himself and the defendant, under which the timber was cut from their land; the trial judge saying, "You have that thing [the contract] in writing, and you can't let the witness testify about it when you have it in writing." The eighth assignment is upon that part of the court's charge bearing on this contract, which is as follows. "The contract in this ce is in writing, and by its terms D. E. Myers sold to O. M. Morrison the white and red oak on his and the lands of the other defendants, to be manufactured into lumber and sold. The white oak was to be paid for at two dollars per M., the red oak, at a dollar and a half per M. The written contract in this case is a contract for an absolute sale. Defendants insist that title to the lumber was retained by them until the price they sold for to Morrison was paid. This could be done only by making such contract after the written contract was made, by which such title was retained. This could have been done any time before Morrison became involved with other people in selling the timber to them."

The record shows that Myers and the other defendants were the owners of certain land in the state of Arkansas, and that Morrison, desirous of cutting trees from this land to convert into lumber, in the absence of Myers from his office in Memphis left for him the following proposition in writing, viz.:

"I want to put mill on your land, and buy the timbers you have in township 8 north, range 6 east, Sec. 12, Sec. 1, Sec. 2, Sec. 3, Sec. 4, Sec. 5. Timbers to be paid for as...