Stearns & Culver Lumber Co. v. Adams
| Decision Date | 24 March 1908 |
| Court | Florida Supreme Court |
| Parties | STEARNS & CULVER LUMBER CO. v. ADAMS. |
Error to Circuit Court, Walton County; J. Emmet Wolfe, Judge.
Action by Z. S. Adams against the Stearns & Culver Lumber Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Syllabus by the Court
It is the province and duty of the court to determine the relevancy and admissibility of evidence when the same is offered and objections are interposed thereto. If the relevancy of the evidence is not apparent at the time it is offered, it is properly rejected, though, if the party proposing it clearly makes the purpose for which it is offered appear, and promises to follow it up and connect it with other evidence which would make it material and relevant, the trial court being authorized to regulate the order of the introduction of evidence, may receive if conditionally; but its discretion in such a matter, either in receiving or rejecting evidence will only be interfered with by an appellate court where clearly abused.
Where several written instruments are successively offered in evidence for the stated purpose of showing that certain timber rights were vested in the defendant, and such instruments, taken as an entirety, fail to show such rights and no offer or promise is made to connect the proffered instruments with other testimony, so as to make them material and relevant, they are properly excluded.
In determining the correctness of charges and instructions, they should be considered as a whole, and, if as a whole they are free from error, an assignment predicated on isolated paragraphs or portions, which, standing alone, might be misleading, must fail.
COUNSEL Blount & Blount & Carter and Daniel Campbell & Son, for plaintiff in error.
John F. Watson, for defendant in error.
This is an action brought by the defendant in error against the plaintiff in error for the recovery of damages alleged to have accrued to the plaintiff by reason of breaking and entering certain described land of the plaintiff, digging up the soil thereof, and for cutting and removing certain pine logs from the land, and for the conversion of the same. Pleas of not guilty and a denial that the logs alleged to have been cut were the property of the plaintiff were interposed, upon which issue was joined and a trial had before a jury, which resulted in a verdict in favor of the plaintiff, upon which judgment was entered for $45.21 damages and $48.87 costs. The defendant seeks a review and reversal of this judgment by a writ of error returnable to the present term of this court.
The first four assignments are based upon the exclusion by the trial court of four written instruments which the defendant offered and sought to introduce in evidence, and we shall follow the example of the respective counsel in considering and discussing these assignments together.
The first of such instruments was executed by the plaintiff and his wife to Calvin Lewis, under date of the 8th day of October, 1903, by which 'all of the pine trees ten inches up in diameter twenty feet long now upon' the land described in the declaration, as well as upon other land, were sold and conveyed to the grantee therein, his heirs and assigns, and the land described in the declaration was also leased to the grantee 'for the term of three years (3) from date for the purpose of removing said timber therefrom.' It was also stipulated in such instrument that 'this lease to be void and this deed ineffectual after three years from date.'
The second instrument was executed by Calvin Lewis and wife to Santa Rosa Lumber Company, under date of the 4th day of November, 1903, and conveyed all the rights and interest acquired by Lewis from Adams; the land being specifically described. The third instrument was executed by Santa Rosa Lumber Company to M. M. Morrison and A. D. Morrison, under date of the 8th day of December, 1905, in which was sold and conveyed to the grantees therein all the standing pitch pine timber upon a number of parcels of land which are particularly described, but in which is not included the parcel of land described in the declaration. Immediately following the specific descriptions of the lands are the following clauses:
The fourth instrument was executed by M. M. Morrison and A. D. Morrison to the defendant, Stearns & Culver Lumber Company, under date of the 8th day of August, 1906, which contains the following clause relating to the land and trees in controversy:
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