115 Ga. 320 | Ga. | 1902
Wolfe brought an action of trover against Clarke Brothers, to recover a raft of timber. It was alleged that the defendants had been stubbornly litigious and had acted in bad faith, causing the plaintiff to lay out the sum of $75 in the employment of counsel, which amount was sued for in addition to the raft of timber. The judge instructed the jury that the plaintiff was entitled to recover, and left to their determination only the question of what should be the amount of damages and the attorneys’ fees to be allowed. The jury returned a verdict for the plaintiff for $391.75. The defendants assign error upon the refusal of the court to grant them a new trial.
Was the contract between Clarke Brothers and Clifton of such a character that title to the timber and lumber to be cut therefrom vested in Clarke Brothers immediately upon the execution of the contract; that is, were Clarke Brothers the owners of the timber and lumber from the date of that contract, and was Clifton their mere agent and representative to cut and saw the same for their benefit? We do not think that the instrument can be properly construed to be a contract of sale under which the timber and lumber became at once the property of Clarke Brothers. The agreement contained in the paper is rather an executory contract for the sale of the timber and lumber, and title to the same would not pass
The court instructed the jury that they were to determine from the evidence whether the plaintiff was to recover attorneys’ fees as a part of his damages. This instruction, we think, was error, for the reason that under no view of the evidence was there authority for a finding that the defendants had acted in bad faith or had been stubbornly litigious. We can not tell with certainty whether the jury allowed any amount as attorneys’ fees, as the evidence with reference to the value of the timber ranged from something less than $300 to an amount largely in excess of the verdict returned. If the jury found the least amount that the evidence authorized, with interest from the time of the conversion, the damages would *be less than the amount of the verdict rendered, and it would therefore seem that the jury had allowed at least something for attorney’s fees, if they took that view of the question of damages. On the other hand, if the jury fixed the value of the raft of timber at the sum authorized by a portion of the testimony, the verdict was for a sum less than the value of the timber itself, independently of the matter of the expenses of the litigation. We can not, therefore, state with certainty whether the error of the judge in leaving to the jury the question of damages was prejudicial. The presumption is that it was, and a new trial would necessarily result from such an error. If, however, the plaintiff will write off from the verdict the sum of $75, which was the full amount claiméd in the petition as attorneys’ fees, the judgment will be affirmed, with direction that the verdict and judgment be so amended as to be for the amount rendered, less $7 5, and that the costs in this court, as well as all costs in the court below which have accrued since the motion for a new trial was filed, be taxed against the defendant in error. If, on the other hand, the plaintiff refuses to write off the amount referred to, the judgment will be reversed.
Judgment affirmed conditionally, with direction.