Petey Mfg. Co. v. Morris
| Decision Date | 27 March 1912 |
| Citation | 84 A. 238,118 Md. 91 |
| Parties | PETEY MFG. CO. v. MORRIS. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Wicomico County; E. Stanley Toadvin and Robley D. Jones, Judges.
Replevin by the Petey Manufacturing Company against Manlius K. Morris. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, THOMAS PATTISON, and URNER, JJ.
James E. Ellegood, for appellant. John H. Handy, for appellee.
This appeal is from a judgment of the circuit court for Wicomico county, directing a verdict in favor of the defendant below in an action of replevin by the appellants for certain pine sawlogs and pine trees cut down and lying upon land belonging, at the time the suit was instituted, to the appellee.
The appellants claim title to the property replevied upon the following state of facts: James E. Ellegood, as trustee under a decree of court, sold the land upon which the trees in question were then growing to the Powellville Manufacturing Company, a corporation; but, before a conveyance was made by the trustee to said company, it had entered into an agreement with Elijah A. Perdue for the sale of said land to him reserving to itself certain described timber standing on said land. Subsequently, the trustee united with the said company in a deed of said land to said Perdue, conveying to him all the right and title of the parties to the cause in which the trustee had been appointed to sell, and all the right and title of the said company in the land sold, and described in said deed, with the following reservation:
On October 3, 1903, Perdue and wife sold and conveyed the same land to Manlius K. Morris, the defendant, reserving, however to the Powellville Company all the timber reserved in the deed above mentioned; the language of the first reservation being repeated in the deed last mentioned.
In March, 1906, the Powellville Company, by an agreement in writing, sold all the timber so reserved to it to the appellants, co-partners trading as the Petey Manufacturing Company, "with free ingress and egress for the purpose of cutting, hauling, or removing the said timber and lumber; *** the said party of the second part, its successors, or assigns, to have until January 31, 1909, within which to cut and remove said timber;" and on March 24, 1908, by another agreement in writing, the time for that purpose was extended until January 1, 1911.
It was testified by one of the plaintiffs, without contradiction, "that the timber described in the replevin proceedings was a part of the timber described in the said deeds and agreements, and was all cut into logs upon the said land and ready to be hauled off of the same to the mill of the plaintiffs before January 1, 1911; that the last of it was cut about December 23, 1910, but that he had been unable to remove it all before January 1, 1911, and that on January 4, 1911, he went upon the land of the defendant, and hauled off one load of said timber, and thereupon the defendant notified the plaintiffs not to haul or remove any more of said timber; and that the plaintiffs thereupon sued out the writ of replevin."
The pleas were non cepit and property in defendant, upon which issues were joined, and the case was tried before the court, without a jury.
The defendant's first contention is that the case was properly withdrawn from the jury, because there was no evidence of demand by plaintiffs before the writ issued. It is true that the general rule requires a demand to be made before an action of replevin in the detinet (as this is) can be brought. "But when the plaintiff claims the ownership of the property, and the right of possession as incident to that ownership, and the defendant's right claimed is precisely the same, no demand is necessary." Cobbey on Replevin, § 447. "Where the defendant pleads ownership in himself [as he does here], he cannot defeat a recovery under the pretense that he would have surrendered the property, if demand had been made." Id. § 448. Morris on Replevin, § 78. Where circumstances show that a demand would have been unavailing, no demand is necessary. Howard v. Braun, 14 S.D. 579, 86 N.W. 635; Raper v. Harrison, 37 Kan. 243, 15 P. 219; Pringle v. Phillips, 5 Sandf. (N. Y.) 161. The circumstances of this case, and the defendant's plea of property in himself, preclude any idea that he would have heeded a demand.
The next contention of the defendant was that there was no evidence identifying the timber replevied as that which the plaintiffs were entitled to take under the deeds and agreements offered in evidence--that is, that it was cut from the land described in the said deeds and agreement, and that it was eight inches across the stump six inches above the ground--but we cannot agree to this. The witness Wimbrow testified that he was in charge of the cutting and hauling of the timber on the land described in the deeds and agreements; "that the timber described in the replevin proceedings was a part of the timber described in the deeds and agreements." This could not be so, unless it was eight inches across the stump six inches above the ground. He also testified that "it was all cut into logs upon the said land and ready to be hauled off of the same to the plaintiffs' mill before January 1, 1911; that the last of it was cut about December 23, 1910, and that the logs in dispute were on the said land of the defendant on January 1, 1911, but he was unable to haul them until January 4, 1911, when he went upon said land and hauled one load of logs, when defendant forbade him to haul any more; and that the plaintiffs then sued out this replevin."
Even if this testimony were conceded to be inconclusive, yet, being derived from a legal source, and being pertinent to the issue, the jury was the proper tribunal to pass upon it. Wetherall v. Garrett, 28 Md. 450. Before the court could, on that ground, have granted an instruction that the plaintiff was not entitled to recover, it must have assumed the truth of all Wimbrow's testimony tending to identify the timber, and all inferences of fact fairly deducible therefrom. Leopard v. C. & O. Canal, 1 Gill, 222; and the instruction given could not have been properly granted on that ground.
The final contention of the defendant is that all right and title of the plaintiffs in and to the timber described in the said deeds and agreements, whether then attached to the soil, or severed and worked into logs and remaining on the land on January 1, 1911, was on that date forfeited, under the express terms of said deeds and agreements, to the appellee as owner of the land upon which said timber was grown notwithstanding that the purchase price of said timber had been fully paid, and notwithstanding that in this state, ever since the decision in Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104, a sale of standing timber was held to be "a sale of goods only," and the timber so sold thereafter to retain its character of goods and chattels. In Leonard v. Medford, 85 Md. 666, 37 A. 365, 37 L. R. A. 449, Judge McSherry, speaking for the court, said: ...
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