48 S.E.2d 156 | Ga. Ct. App. | 1948
1. Where trees are wrongfully cut and manufactured into lumber and a trover action has been instituted by the owner for damages therefor in the amount of the value of the lumber or manufactured product and the case is in default, the defendant may only contest the amount of such damages, that is, the value of the lumber in question at the time and place of the demand or the filing of the suit, and he is not entitled to introduce evidence as to the value of the trees in question, while they were standing in the woods, or as to the stumpage value of these trees.
2. Under the evidence, the court did not err in directing a verdict for the plaintiff for the amount of the value of the lumber at the time of the filing of the suit. *153
3. That part of the verdict and judgment awarding interest eo nomine to the plaintiff in this case is contrary to law, and the judgment is affirmed with direction that the interest be written off.
The plaintiff alleged in his petition that he was the owner of certain described land in Marion County, Georgia, and that, on February 11, 1946, he sold the defendant all of his pine timber down to ten inches stumpage on this land, under a written contract, copy of which was attached to the petition, and that the defendant agreed to take the best possible care of all timber below ten inches stumpage, but that in spite of this agreement, the defendant entered upon the land and wrongfully cut, manufactured into lumber, and carried away 1825 pine trees of less than ten inches in diameter at the stump, that the lumber manufactured from these trees amounted to 58,400 board feet of the market value of $2920, by reason of which the defendant had damaged the petitioner in this sum, plus interest at 7% per annum from the date of the filing of the suit.
The case was in default at the July, 1947 term of Taylor Superior Court, and was continued until the January, 1948 term when a motion to open the default was denied by the court, and the case proceeded to trial. Three witnesses for the plaintiff testified that the market value of the lumber, on February 21, 1947, was $50 per thousand board feet, and one of these witnesses testified that he had been employed by the plaintiff to count the stumps under ten inches, another testified that he had sought to purchase some of the lumber from the defendant and was informed that the price was $50 per thousand board feet, and another testified that he had bought some rough pine lumber about February, 1947, of the same grade that he had seen at the defendant's place, and had paid $50 per thousand board feet for it. The defendant testified that the lumber he had manufactured from the trees on the plaintiff's land had been sold for $50 per thousand board feet. *154
The court directed a verdict for the plaintiff for the amount sued for in his petition, and judgment was rendered accordingly. The case is here on exceptions to the judgment overruling the defendant's motion for a new trial. In special ground 1 of the motion for a new trial error is assigned on the admission of testimony of J. Warren, witness for the plaintiff, who testified that the value of pine lumber at the time and place in question was $50 per thousand board feet. The defendant contended that because the petition did not allege that the defendant "wilfully" cut and carried away the trees, the measure of damages was the value of the trees when cut and severed from the land, and not the manufactured value, and therefore this evidence was inadmissible. Special ground 2 assigns error on the refusal of the court to permit Lester Ichard, a witness for the plaintiff, to testify on cross-examination as to the stumpage value of the trees. The court ruled: "Damages under the ruling of the court are restricted to the value of the lumber." Error is assigned in special ground 3 because the court refused to permit the defendant to testify that the plaintiff had offered to sell all the saw timber and pulpwood on the land to him for $2500, and in special ground 4 because the court refused to permit the defendant to testify as to the value of the trees per thousand board feet, at or about the time this suit was filed.
Where a case is in default "the plaintiff, at any time on or after the first day of the term to which the case is returnable, shall be entitled to verdict and judgment by default as if every item and paragraph of the petition were supported by proper evidence, and his claim, allegation or demand may at any time thereafter be tried without the intervention of a jury unless the suit is one for unliquidated damages, whether ex contractu or ex delicto, in either of which events the plaintiff shall be required to introduce evidence and establish the amount of damages before a jury, and the defendant may contest the amount of such damages before a jury, with the right to move for a new trial in respect to such damages, and also to except as in other cases." Code (Ann. Supp.), § 110-401 (Ga. L. 1946, pp. 761, *155
777). Code, § 105-2013 provides "Where plaintiff recovers for timber cut and carried away, the measure of damage is: 1. Where defendant is a wilful trespasser, the full value of the property at the time and place of demand or suit, without deduction for his labor or expense. 2. Where defendant is an unintentional or innocent trespasser, or innocent purchaser from such trespasser, the value at the time of conversion, less the value he or his vendor added to the property." In Taylor v. Hammack,
2. The evidence as to the amount and the market value of the manufactured lumber at the time of filing the suit was uncontradicted, it being admitted by the plaintiff in error that the lumber had been sold by him at $50 per thousand feet, and the amount of damages was conclusively established. This being the only question in issue before the court, there was no error in directing a verdict for the plaintiff for the amount of the value of the lumber at the time of the filing of the suit.
3. The plaintiff in a trover action is not entitled to recover interest, eo nomine, and this principle of law is conceded by counsel for defendant in error in this case. That part of the verdict and judgment so awarding interest to the plaintiff in this case is contrary to law. Therefore, the judgment is affirmed with direction that the interest be written off.
Judgment affirmed with direction. Felton and Parker, JJ.,concur. *157