44 So. 533 | Ala. | 1907
This was an action of trover, brought by the appellee and one Daffin for the conversion of lumber. During the progress of the trial the plaintiffs were allowed to amend the complaint by striking out the name of Daffin as a party plaintiff, and making the complaint state that the remaining plaintiffs sued only for the conversion of their two-thirds interest in said lumber, and also by adding a count for the-conversion of their two-thirds interest in 1,078 pine logs. The defendants moved for a nonsuit, and also demurred to the complaint as amended: (1) Because the two plaintiffs cannot recover; (2) because the plaintiff's have only a part interest in the chattels, and the cause cannot be split.
The first two assignments of error are to the action of the court in overruling said motion and demurrer. There was no error in the action of the court in this matter. The action of trover may be maintained by part owners of a chattel for the conversion of their interest. — White v. Moore, 22 Vt. 15, 52 Am. Dec. 75; McGowen, and Wife v. Young, 2 Stew. 276; Strong v. Strong, 6 Ala. 345; Lowery v. Rowland, 104 Ala. 420, 426,16 South. 88.
The court erred in permitting the witness Daffin, over the objection of. the defendant, to testify that one Pritchett, who was agent of the defendant, had, prior to the alleged trespass, “made overtures with reference to
The court erred in admitting the statement- of account, which, according to the testimony of the witness Dunn, Avas handed to him as a part of the negotiations-for a compromise. This Avas not shoAvn -to be an admission of distinct facts, Avithin the', rule laid down Matthews v. Farrell, 140 Ala. 298, 308, 37 South. 325, and cases cited. In addition it may be said no authority is shoAvn in the attorney to bind his client.
The assignments referring to the sufficiency of the evidence of possession by plaintiffs to establish title are Avithout merit, as the ■ defendant’s subsequent. evidence showed that it claimed under the plaintiffs, and- therefore could not deny their title.
The objections to the introduction of the “scaling-! book” produced by the Avitness Garrett should have been sustained. Said AAdtness stated that he -did- not knoAV AA'here the timber came from that- was entered therein, except by certain letters placed on said timber by- other employe's, and the testimony of said employes does not sufficiently identify the timber and marks to constitute proof as to the accuracy of the items. The Avitness Pritchett merely states that he made reports “sometimes” to Garrett, and that he ‘Vas present, when the. timber Avas cut on the lands described in the complaint.” I-Ie does not testify as to any marks, and there is no. -land “described in the complaint.” The Avitness Stevens testified merely that “the timber cut from the lands ‘mentioned Avere marked or lettered in such Avay aslto show the lands the log came from.” For the same reason, all of the testimony of the Avitness Garrett as to scaling the timber should haA*e been excluded.
The testimony of the witness Joiner as to the market value of logs at Mobile and Jackson and at the river, and the comparison of prices and the cost of transportation, were properly admitted as furnishing data from which the value at the place of conversion could be arrived at. — Berry v. Nall & Duxberry, 54 Ala. 446, 451; 16 Cyc. 1144.
• That portion of the court’s oral charge to the effect that the damages should be assessed “at the value of the timber,” and .not “for value of manufactured lumber,” taken in connection with the other portion of the oral charge, in which he distinctly informed them that the plaintiffs could recover for two-thirds of the value, was not erroneous. It simply informed them that the value should be of the timber, and not of the manufactured lumber.
There being no question raised as to the defendants being willful trespassers, the measure of damages was the value of the logs when severed from the land, and not their value at the.mill. Hence the court erred in that part of the oral charge fixing the damages as the value at the mill, and also-in the charge fixing the value at the “highest value they found said logs to have had.” —White v. Yawkey, 108 Ala. 270, 19 South. 360, 32 L. R. A. 199, 54 Am. St. Rep. 159.
■The judgment of the court is reversed, and the cause remanded.
