104 Me. 203 | Me. | 1908
The plaintiff land owners and Charles W. Mullen made an agreement in writing in the form known as a "permit,” by which Mullen was to enter upon certain timber land of the plaintiffs and cut and remove therefrom and drive to market certain kinds of timber, and pay therefor a fixed stumpage price per M. In the permit were various stipulations. Mullen was to cut all the burnt timber on the land during the lifetime of the permit, and all the burnt timber left uncut was to be scaled and was to be paid for by Mullen according to the terms of the permit. The stumpage was to be paid in full by July 1 of each year and all the other requirements of Mullen in the permit were to be performed by him, and it was further stipulated that all the logs and timber cut on the land should remain the property of the plaintiffs until stumpage bills were paid "and all other matters pertaining to this license were fully adjusted;” also that if all these were not done within ten days after July 1, the plaintiffs might "take possession of and sell at either public or private sale for cash any or all of the lumber cut under this pérmit wherever situated and whether manufactured or not, and after deducting reasonable expenses, commissions and all sums which may then be due or may become due from any cause whatever as herein expressed, the balance, if any there be, they shall pay over on demand to said grantee after a reasonable time for ascertaining and liquidating all amounts due or which may become due either as stumpages or damages.”
Under this permit Mullen entered on the land each year and cut and hauled and drove to market a quantity of logs and lumber. A part of these, viz. 9,555 spruce logs, he sold to the defendant.
At the trial the principal, if not the only, controversy was over the matter of the burnt timber named in the permit. The plaintiffs claimed that a large amount of burnt timber which Mullen was bound by the terms of the permit to cut and pay for, or bound to pay for if left uncut, was left uncut and not paid for. Mullen claimed that he had not left uncut any burnt timber within the terms of the permit. The defendant claimed and offered evidence to show that the full amount due the plaintiffs from Mullen for all damage of any kind due them under the permit was $5166.55 and asked to have the question of those damages determined in this action of trover. The court excluded the evidence and instructed the jury to return a verdict for the plaintiffs for the full value of the logs at the time of the conversion, and interest from the date of the writ, which amount was $14,656.33. To these rulings the defendant excepted.
To sustain these rulings we should need to hold that the transaction between the plaintiffs and Mullen as evidenced by the written permit was only a conditional sale to Mullen of the logs and lumber cut, hauled and driven to market by him under the permit, and that by his failure to perform in full by the time fixed any of the conditions of the sale, he forfeited and lost all interests and rights in the logs and lumber, and the plaintiffs could take them or recover the full value of them free from any obligations to Mullen. The decisions in Brown v. Haynes, 52 Maine, 578; Hawkins v. Hersey, 86 Maine, 394; and in other cases similar to them were made on that ground.
We think, however, that this case is not within the principle of those cases; that there is a wide difference between them. By the agreement in this case if the plaintiffs took the logs and lumber for non-performance of any condition in the agreement, they were to
If difficulties develop requiring it, an auditor can be appointed, or the case held until other necessary proceedings are had. It may be that the whole amount due the plaintiffs from Mullen under all the terms of the permit would exceed the full value of the logs converted by the defendant. In such case the plaintiffs would be entitled to the full value, but the defendant has the right to be heard upon that question and ' have it determined before being condemned.
It follows that the ruling directing a verdict for the full value of the logs and excluding evidence as to the amount due the plaintiffs was erroneous, and that the exceptions to that ruling must be sustained, This makes it unnecessary to consider the other exceptions.
Exceptions sustained•
New triad ordered•