Three States Lumber Co. v. Blanks

• Decision Date: 27 April 1907
• Citation: 102 S.W. 79,118 Tenn. 627
• Parties: THREE STATES LUMBER CO. ET AL. v. BLANKS.
• Court: Tennessee Supreme Court

102 S.W. 79

118 Tenn. 627

THREE STATES LUMBER CO. ET AL. v. BLANKS.

Supreme Court of Tennessee.

April 27, 1907

Appeal from Circuit Court, Shelby County; J. P. Young, Judge.

Action by H. B. Blanks against the Three States Lumber Company and another. From a judgment for plaintiff against the lumber company, it appealed. Affirmed.

W. A Percy, for appellant.

Tim E Cooper, for appellee.

McALISTER J.

The plaintiff below, H. B. Blanks, recovered a verdict and judgment against the Three States Lumber Company for the sum of $2,176.80 as damages for the conversion of a lot of lumber. The Three States Lumber Company appealed from said judgment and has assigned errors. There is no assignment of error on the sufficiency of the facts to support the judgment, but questions of law only are sought to be reviewed on this appeal. The claim of the plaintiff below is substantially set forth in the second count of the declaration as follows:

"The plaintiff avers that the said defendant on or about January 20, 1902, sued out a writ of replevin in the Circuit Court of the United States at Memphis for the recovery of 250,000 feet of lumber then in possession of the plaintiff, which writ came in possession of the defendant G. W. Hawkins, who was a deputy United States marshal; that the defendants, the Three States Lumber Company and said Hawkins, seized a barge load of lumber under said writ on the 21st of January, 1902, containing 425,000 feet of lumber, the property of the plaintiff, and did not separate the 250,000 feet of lumber for which the writ of replevin had been issued, but unlawfully and willfully took the whole barge load of lumber and unlawfully converted to their own use 175,000 feet of cottonwood lumber, of the value of $3,000."

We shall only make such statement of the facts as is necessary to illustrate and apply the many interesting and complicated questions of law which the ability and ingenuity of counsel have assigned on this appeal. In the examination of the evidence the court will accept that view of the case most favorable to the judgment plaintiff, since all controverted questions of fact have been settled in his favor by the verdict of the jury.

There is evidence tending to show that the plaintiff, Blanks, at the time of these transactions was operating a sawmill in Lake county, Tenn., near Reel Foot Landing, on the Mississippi river. The land occupied by the plaintiff, Blanks, adjoined a large body of cottonwood timber land owned by the Three States Lumber Company. It appears that the boundary line between these adjoining proprietors had not been accurately surveyed, and the hands of the plaintiff, Blanks, in cutting timber, got upon the premises of the Three States Lumber Company and cut some of its cottonwood timber, which was carried to the sawmill of Blanks and converted into lumber, making about 15,000 feet. In January, 1902, the Three States Lumber Company sued out a writ of replevin in the Circuit Court of the United States for the Western District of Tennessee to recover the lumber manufactured from its trees, alleging the amount to be 250,000 feet, which was described in the writ as being in Blanks' lumber yard. It appears that, when the Three States Lumber Company sued out its writ of replevin, Blanks had made an executory sale of a barge load of lumber to the Cairo Lumber Company, and was loading it on the barge for the purpose of making delivery under this contract.

It appears that prior to the levy Blanks had caused to be loaded on the barge about 430,000 feet of lumber, and that at the instance of one Scroggins, who was on the ground as the agent of the Three States Lumber Company, the deputy marshal seized the whole barge and turned it over to Scroggins as the representative of that company. It further appears that the marshal, after levying the writ, did not undertake to separate the 250,000 feet of lumber called for by his writ from the remainder of the barge load, but left it all in the custody of Scroggins, and there is evidence that Scoggins afterwards said that he did not want the separation made, since it would cost too much money and trouble. The record reveals that at the time this levy was made the barge, which belonged to the Cairo Lumber Company, was in charge of its watchman, and Scroggins employed this watchman to maintain the possession of this barge load of lumber for and on behalf of the Three States Lumber Company. It was shown that in consequence of this levy the executory contract between Blanks and the Cairo Lumber Company for the purchase of this lumber was not consummated, but was abandoned. It is in proof that the watchman of this barge load of lumber was interdicted by Scroggins from permitting this barge load of lumber being forwarded to Cairo by any of the tugboats passing up the river. It appears that after the lapse of several days, and while the actors in this transaction remained in a state of masterly inactivity, a heavy storm of rain and sleet descended on the barge, and by reason of the additional weight caused by the frozen condition of the sleet and rain the barge and contents were sunk in the Mississippi river. This sunken barge, it appears, was afterwards raised at the instance of the Three States Lumber Company; all the lumber being recovered and transported by said company to Cairo, Ill. The barge and lumber were subsequently libeled in the District Court of the United States for the Southern District of Illinois by the Three States Lumber Company. Process was issued and mailed to Blanks in accordance with the practice in such cases. He did not, however, enter his appearance, and under the libel of the Three States Lumbel Company salvage was allowed amounting to the sum of $1,833.29. As the result of this judgment the lumber was sold and purchased by the Smith Lumber Company, many of whose stockholders were equally interested in the Three States Lumber Company. Subsequently to all of these proceedings the replevin suit already mentioned was prosecuted to judgment in the Circuit Court of Appeals. In that cause the defendant, Blanks, had tendered 15,000 feet of lumber, and this tender was maintained by the court, and it was adjudged that the Three States Lumber Company was not entitled to recover of Blanks the remaining 235,000 feet of lumber claimed. A judgment, moreover, was awarded Blanks for the value of the 235,000 feet of lumber seized by the writ, amounting to $3,061.11, and this amount was paid by the Three States Lumber Company. It further appears that on the 16th of May, 1902, Blanks, after the sinking of the barge, brought suit on the bond of Thos. H. Baker, United States marshal, for damages sustained in seizing the whole barge load of lumber under the writ of replevin, instead of taking only 250,000 feet, as he was directed to do. As already stated, this excessive levy was made by the defendant G. W. Hawkins as the deputy marshal under said Baker. That suit resulted in a judgment in favor of Baker. On the 24th of June, 1903, this suit was brought to recover damages against the Three States Lumber Company for the unlawful conversion to their own use of 175,000 feet of cottonwood lumber, and, as already stated, the trial below resulted in a judgment in favor of Blanks for the sum of $2,176.80. This is a substantial statement of the facts appearing in the record, but other facts will be more appropriately stated under the assignments of error.

The first assignment is that the court erred in sustaining the plaintiff's demurrer to the eleventh plea filed by the defendant. The plea is as follows:

"And for further plea to the declaration herein filed against the defendant, the Three States Lumber Company comes and says the plaintiff ought not to have or maintain its action herein, because the only possession, if any, which the defendant ever had, which it denies, of the lumber which it is charged it converted to its own use, was by virtue of a certain action of replevin instituted by it in the Circuit Court of the United States for the Western District of Tennessee against the said plaintiff for 250,000 feet of cottonwood lumber loaded on the barge Jennie near Reel Foot Landing, in Lake county, Tenn.

In said action a replevin bond was executed by the Three States Lumber Company and a writ of replevin was issued and attempted to be levied on 250,000 feet of lumber on said barge; there being then on said barge about 350,000 feet. The officer serving the writ executed the same by handing a notice to the watchman in charge thereof, notifying all persons that he attached 250,000 feet of the lumber on said barge, and warning all persons not to interfere with same, and also notifying said watchman that he delivered said lumber to Scroggins, as agent for the Three States Lumber Company; and the defendant avers that it was only by virtue of the execution of the writ that it came into possession of the remainder of the lumber on the barge in excess of 250,000 feet, if it ever came into possession, which it denies.

And this defendant avers that thereafter the said replevin suit proceeded to judgment, and recovery was had against the plaintiff and its bondsmen, on account of the lumber which came into its possession by reason of the execution of said writ of replevin, for the amount of $3,882.61, which said judgment has been paid and fully discharged by this defendant; and therefore this defendant says that no recovery can be had in this cause because of any wrong done the plaintiff in the manner in which said levy was made, or because of the said alleged conversion, wrong, and injury as set out in said declaration. The plaintiff makes profert of the bond, writ returned thereon, declaration, pleas, and judgment in said action."

The demurrer of the...