United States v. Gumm

• Decision Date: 29 August 1899
• Citation: 9 N.M. 611,58 P. 398
• Parties: UNITED STATESv.GUMM et al.
• Court: New Mexico Supreme Court

9 N.M. 611

58 P. 398

UNITED STATES

v.GUMM et al.

Supreme Court of the Territory of New Mexico.

Aug. 29, 1899.

Syllabus by the Court.

1. Where the United States sues in trover, for damages for the cutting and converting to the defendants' use timber cut from the public lands, and defendants are sued individually as well as under the firm name of Gumm Bros., it is not error for the court to overrule a demurrer to a plea in abatement denying existence of such firm, and alleging existence of firm under another name.

2. In such case, a partner may be sued individually, without regard to the partnership.

3. Where defendants plead a license to cut and convert such timber, the burden of proof is upon defendants upon that issue.

4. In order to establish license under the act of congress approved June 3, 1878 (20 Stat. p. 88, c. 150), it is necessary to prove compliance with section 1 of the act, and also the rules and regulations prescribed by the secretary of the interior, as required by said section.

5. Where the defendants introduce competent evidence tending to prove license, it is error to refuse instructions requested by the plaintiff embodying the rules prescribed by the secretary of the interior.

6. The court, in such case, will take judicial notice of such rules and regulations.

7. Where competent evidence sufficient to sustain a verdict has been given to the jury tending to prove the illegal cutting and appropriation of timber of the United States, and by the defendants competent evidence tending to justify such acts, it is for the jury to determine the weight of such evidence, and it is error for the court to take the case from the consideration of the jury.

Error to Fifth judicial district court; before Justice H. B. Hamilton.

Trover by the United States against John Gumm and others. Judgment for defendants. The United States bring error. Reversed.

It is the duty of the court to submit a question of fact to the jury, where the evidence in regard thereto is conflicting.

W. B. Childers, for the United States.

S. B. Gillett, for defendants in error.

McFIE, J.

At the May term, 1897, of the district court for the Fifth judicial district, this cause was tried before Judge Hamilton and a jury, and, under the instructions of the court, verdict was rendered for the defendants. A motion for a new trial was filed by the plaintiff in error, and, the same being overruled, judgment was rendered against the plaintiff for costs. To reverse this judgment, the plaintiff below has brought the cause into this court by writ of error. The United States brought suit in trover against John, Wallace, Peter, and Joseph Gumm as individuals, and also as partners doing business under the firm name of Gumm Bros., alleging that the defendants converted to their own use logs, lumber, and timbers cut and manufactured from and out of trees theretofore standing, growing, and being upon certain lands of the plaintiff, situate in said district, and alleging plaintiff's damages to be $10,000, for which amount plaintiff prays judgment. There was personal service by the marshal, and Warren, Fergusson, and Gillett entered appearance as attorneys for defendants. On the 4th day of May, A. D. 1897, a plea in abatement was filed by the defendants, denying that the defendants were partners or transacted business under the firm name of Gumm Bros., denying the existence of any such firm as Gumm Bros., and alleging the existence of the White Oaks Building & Lumber Company, a firm composed of John Gumm, Joseph Gumm, Wallace Gumm, and Elmer Gumm, and that they have always transacted business under the name of the White Oaks Building & Lumber Company since the organization of the partnership. To this plea a demurrer was interposed, upon the ground that, inasmuch as the defendants were sued individually as well as members of a co-partnership, the plea does not constitute a defense. The court sustained the demurrer, and to this action the defendants duly excepted.

Section 2946, Comp. Laws 1897, is as follows: “All contracts, which by the common law are joint only, shall be held and construed to be joint and several; and in all cases of joint obligations or assumptions by partners and others, suit may be brought and prosecuted against any one or more of the parties liable thereon, and when more than one person is joined in any such suit, such suit may be prosecuted, and judgment rendered against any one or more of such defendants.” In the case of Curran v. Shoe Co., 8 N. M. 417, 45 Pac. 1120, it was held that one member of a co-partnership could be sued, and that the firm name was “nothing more than descriptio personae.” Under the laws of this territory, therefore, all contracts and obligations are several, and, in case of co-partnership, each member is severally liable, and may be sued separately, and judgment may be taken against him, regardless of the existence of the partnership or the liability of the other co-partners. That the statute above referred to applies to this case, which is an action ex delicto, may well be doubted, but, even so, it will be found that under the common law the result is the same. T. Pars. Partn. (3d Ed.) p. 171, states the doctrine as follows: “It is to be observed that, although all the partners may be liable for a tort and all may be sued jointly, they may also be sued severally; for, in law, all torts, however joint, and whether constructive or actual, are several. It is therefore no answer for a defendant sued in tort to say that others were guilty with him.” Cooley, Torts (2d Ed.) p. 155. The plea discloses the fact that Joseph Gumm, one of the defendants, was a member of the White Oaks Building & Lumber Company. Therefore he was a proper party defendant to the suit, in any event. But, as the parties were sued and served individually, their liability became a matter of proof, and the denial of the existence of the firm of Gumm Bros., or alleging the existence of the firm of the White Oaks Building & Lumber Company, was immaterial, did not constitute a defense, and the court very properly sustained the demurrer to the plea.

The defendants pleaded over, first pleading “Not guilty,” and, as trial progressed, by leave of the court, a plea of license was filed over the objection of the plaintiff. When the evidence was all in, the plaintiff requested the court to give to the jury written instructions 1 to 12, inclusive, and the defendants moved the court to instruct the jury to find for the defendants. The court refused to give the jury any of the instructions requested by the plaintiff, sustained the motion of the defendants, and instructed the jury to find the issues in favor of the defendants. Exceptions were saved to the action of the court by the plaintiff, and the jury returned a verdict in favor of the defendants. A motion for a new trial was made and overruled, and a judgment was entered against the plaintiff for costs.

Several errors have been assigned, and such of them as are deemed necessary to a proper disposition of this case will now be considered.

The first error assigned is that “the court erred in instructing the jury to find a verdict in favor of the defendants.” This court has repeatedly decided that where there is no evidence to sustain a verdict against a defendant, or where the court would be compelled to set aside a verdict against a defendant if returned, the court has power to direct a verdict in favor of the defendant. Candelaria v. Railway Co., 6 N. M. 266, 27 Pac. 497; Improvement Co. v. Munson, 14 Wall. 442; Pleasants v. Fant, 22 Wall. 116; Herbert v. Butler, 97 U. S. 319; Bowditch v. Boston, 101 U. S. 16; Griggs v. Houston, 104 U. S. 553; Randal v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. 322; Railroad Co. v. Jones, 95 U. S. 439; North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 8 Sup. Ct. 266. In this case there was considerable evidence given on the part of the plaintiff tending to show that a large amount of timber was cut from the public lands of the United States described in the declaration; that the same was sawed into lumber by the mill owned in part by the defendant Joseph Gumm; and that a large amount of such lumber was converted to the use of defendant Joseph Gumm and his associates, as the same was sold by them, and the proceeds of such sales appropriated to their own use and benefit. There was also considerable evidence on the part of the defendants tending to show that the lumber sold by Joseph Gumm and associates, under the firm name of the White Oaks Building & Lumber Company, was purchased by citizens of the United States and residents of the territory, and that the timber cut was taken from mineral lands, all of which was competent, under defendants' plea of license. It is true that there appears to be no evidence whatever of the existence of the firm of Gumm Bros., nor that the defendants were co-partners doing business under such firm name. The plaintiffcalled Joseph Gumm as a witness, and he testified there was no such firm, and this is conclusive evidence upon that point. Nor is there any evidence in the record tending to show that John, Wallace, or Peter Gumm individually had any connection with either the cutting of timber or disposing of the lumber complained of, nor were either of them members of the White Oaks Building & Lumber Company. The instruction of the court was correct, therefore, as to the firm name of Gumm Bros.,-John, Wallace, and Peter Gumm. It is different, however, as to Joseph Gumm, who admits he was a co-partner of the White Oaks Building & Lumber Company, which is shown to have cut the timber and sold the lumber. The suit being maintainable against him, evidence tending to establish the cutting of timber from the public lands, by a mill of which he was a co-owner, and the conversion of the product to his use, at least in part, and also evidence tending to show license or authority to cut and dispose of such...