Tacoma Mill Co. v. Perry

• Decision Date: 07 September 1905
• Citation: 82 P. 140,40 Wash. 44
• Parties: TACOMA MILL CO. v. PERRY.
• Court: Washington Supreme Court

82 P. 140

40 Wash. 44

TACOMA MILL CO. v. PERRY.

Supreme Court of Washington

September 7, 1905

Appeal from Superior Court, Thurston County; O. V. Linn, Judge.

Action by the Tacoma Mill Company against A. P. Perry. Judgment for defendant. Plaintiff appeals. Affirmed.

G. C. Israel, for appellant.

Vance &amp Mitchell, for respondent.

CROW J.

Appellant the Tacoma Mill Company, instituted this action in the superior court of Thurston county to recover treble damages in the total sum of $1,462.50, under the provisions of sections 5656 and 5657, Ballinger's Ann. Codes & St., for a willful trespass alleged to have been committed by respondent, A. P. Perry, early in 1901, in entering upon a portion of section 13, township 16 north, range 1 west, land belonging to appellant, and without lawful authority cutting and removing timber therefrom. Respondent in his answer denied the alleged trespass, admitted having cut timber of the value of $109.02, and alleged that he had lawful authority therefor, having in 1897 purchased said timber by contract made by respondent with one Hansen, the duly-authorized manager of appellant, which contract was afterwards in 1901, before said cutting, modified by agreement with one Hill, then manager for appellant. Appellant having by its reply denied such alleged contract, a trial was had, and the jury answered special questions submitted by the court as follows: 'Q. What amount of timber in thousand feet, board measure, did the defendant cut upon the lands in controversy? A. 275,000 feet. Q. What was the market value per thousand feet, board measure, of the timber cut on the lands in controversy, and at the time defendant cut said timber? A. $1.00 per thousand. Q. Did the defendant, at the time he cut the timber on the lands in controversy, have any contract or agreement with the Tacoma Mill Company as to section 13, in township 16 north, of range 1 west, whereby he promised to, or was authorized by said Tacoma Mill Company to, cut said timber? A. Yes. Q. Was the entry and cutting of timber by the defendant A. P. Perry, upon the lands of the plaintiff, the Tacoma Mill Company, with lawful authority from the Tacoma Mill Company? A. Yes. Q. Did Perry cut the timber on section 13 pursuant to an agreement with the Tacoma Mill Company, made with Hansen in the first instance, and modified between him and Mr. Hill and already partly executed? A. Yes. Q. Was such modification, if you find one to have been made, assented to by Perry solely to avoid trouble? A. Yes.' The jury also returned a general verdict in favor of respondent. Appellant, relying upon the special findings, moved for judgment for $275, and costs, notwithstanding the general verdict, which motion being denied, he also moved for a new trial, which was refused, and, judgment being entered for respondent, this appeal has been taken.

Several assignments of error are made, but in substance they present only two propositions: (1) That the special findings made by the jury are not supported by competent evidence. (2) That the court erred in denying appellant's motion for judgment, and in entering judgment for respondent. Appellant contends that the contract for cutting, pleaded by respondent, and evidently found by the jury, was not sustained by competent evidence. Respondent testified that the contract was originally made in 1897 with appellant's manager, Hansen, and stipulated that respondent was to cut the timber, and that one Morris, appellant's cruiser should state what the timber on section 13 was worth, and when he did so state, the amount fixed by him should be the contract price. Appellant contends that, as the exact price was not expressly fixed by respondent and itself, but was left to Morris, no...