Vinton H. Parker Et Ux. v. F. L. Cone
| Decision Date | 04 May 1932 |
| Citation | 160 A. 246,104 Vt. 421 |
| Parties | VINTON H. PARKER ET UX. v. F. L. CONE ET AL |
| Court | Vermont Supreme Court |
Special Term at Montpelier, March, 1932.
Corporations---Principal and Agent---Ratification of Tortious Act of Agent by Principal---G. L. 6956---Trespass---Recovery of Treble Damages for Wrongful Cutting of Timber---Burden of Proof That Cutting Was Done in Good Faith---Waiver of Exceptions by Failure To Brief---Inability of Supreme Court To Review and Weigh Evidence on Which Special Verdict Is Based Where Judgment Is Unchallenged---Close Jail Execution.
1. Evidence held to establish that person cutting timber on plaintiffs' farm did so as agent of corporation and not as agent of co-defendant, who was president and principal stockholder of corporation.
2. Rule of ratification of tortious act of another is that alleged principal must not only know what has been done, but that it was done for him.
3. Where corporation was principal in lumbering operations, and president, as superior agent thereof, gave instructions to its subordinate agent concerning such work, relation of principal and agent did not exist between such superior and subordinate agent, and former was not personally liable for torts committed by latter while carrying out instructions unless he specifically directed them to be done or participated or cooperated therein.
4. Statement of superior agent of corporation, when informed that subordinate agent thereof had cut timber on plaintiffs' farm, that he would stand back of such subordinate agent, held not such ratification of latter's acts as to make former personally liable therefor.
5. Under G. L. 6956, owners of property could recover treble damages against corporation's agent for wrongful cutting of timber, unless it appeared that agent acted through mistake or had good reason to believe that he had right to cut timber in question, in which event actual damages only could be recovered.
6. In action of trespass brought under G. L. 6956, for recovery of treble damages for cutting and removing timber from plaintiffs' farm, burden was on defendant to establish defense that he cut timber through mistake or had good reason to believe that he had right to cut it.
7. Exceptions not briefed are waived.
8. In action of trespass brought under G. L. 6956, for recovery of treble damages for cutting and removing timber from plaintiffs' farm, where exception to special verdict that corporation's agent in cutting such timber did not do so through mistake or with good reason to believe that he had right to cut it, is not briefed, and judgment for treble damages stands unchallenged in Supreme Court, such Court cannot review and weigh evidence on which special verdict is based.
9. In such action, held that close jail execution was properly granted, in view of general and special verdicts and evidence warranting finding.
ACTION OF TRESPASS under G. L. 6956, for recovery of treble damages for cutting and removing timber from plaintiffs' farm. Trial by jury at the June Term, 1931, Windsor County, Graham J., presiding. General and special verdict against both defendants and judgment for treble damages. The defendants excepted. The court also found that the cause of action arose from the wilful and malicious acts of the defendants and that they ought to be confined in close jail, to which finding defendants excepted. The opinion states the case.
Judgment affirmed as to defendant Gould, but reversed as to defendant Cone, and judgment for him to recover his costs.
Raymond Trainor, Marvelle C. Webber and Alban J. Parker for the defendants.
Frank E. Barber and C. Menzies Miller for the plaintiffs.
Present POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ., and SHERBURNE, Supr. J.
This is an action of trespass brought under the provisions of G. L. 6956, for the recovery of treble damages for cutting and removing timber from plaintiffs' farm, called the Hubbard Farm, during the winters of 1928-1929 and 1929-1930. There was a trial by jury. The jury returned a general and special verdicts for the plaintiffs, on which the court rendered a judgment for treble damages. The defendants excepted severally.
Neither of the defendants now question the general verdict so far as it found that the timber was cut and removed from plaintiffs' farm without their leave, and the actual damages.
Defendant Cone moved for a directed verdict at the close of the evidence. The substantial ground of the motion is that there is no evidence which connects him personally with cutting and removing the timber from plaintiffs' farm. The motion was overruled and he was allowed an exception.
In April, 1928, defendant Cone purchased the Weston farm which lies northerly of and adjoining the Hubbard farm. He owned it until July, 1929, when he conveyed it to Weston Heights, Inc., a corporation, hereinafter called the Corporation, of which he was and is the president and principal stockholder. The Corporation has since owned and operated the farm. At all times material it owned and operated a sawmill on the farm which it built before any of plaintiffs' timber was cut. Defendant Gould was the superintendent of the Corporation and, as such, operated the Weston farm and managed the lumbering operations of the Corporation. He had owned both farms, the Weston farm from 1915 to 1928, and the Hubbard farm from 1918 to 1926.
The timber on plaintiffs' farm was cut and removed under the personal direction and supervision of defendant Gould. The plaintiffs tried their case on the theory that Gould cut and removed the timber as Cone's agent, and that Cone, as principal, was personally liable for Gould's acts. Cone denies that the relation of principal and agent existed between him and Gould, and claims that Gould acted as the agent of the Corporation, and not as his agent.
Both defendants were called as witnesses by the plaintiffs when putting in their opening case, and all the evidence of the relation that existed between them in the lumbering operations is found in their testimony given in direct examination and cross-examination at that time. Their testimony is not contradicted. The following facts appear from the same: The Corporation started lumbering operations on the Weston farm in the fall of 1928. Cone did not know the location of the line between the Weston and Hubbard farms. He, as president of the Corporation, directed Gould, as superintendent thereof, to take charge of the operations, and to cut timber on the Weston farm only, he then having in mind that Gould had formerly owned both farms. Thereafter, Gould, as such superintendent, had complete charge of the operations both in that winter and the following winter. He hired teams, hired and fired the men and told the men where and what to cut. Timber was cut on both farms in both winters. All of the timber was taken to the mill of the Corporation where it was sawed. Some of it was used for repairs on the Weston farm, some was sold, and some remains in the mill yard. The Corporation received the pay for all that was sold. Cone did not learn that timber had been cut on plaintiffs' farm until the latter part of December, 1929, or in January, 1930, when plaintiff Vinton Parker informed him of that fact. No timber was cut on the Hubbard farm...
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