65 So. 1010 | Ala. | 1914
This is the fifth appeal in this case. See reports of former appeals, 131 Ala. 117, 30 South. 466, 90 Am. St. Rep. 22; 138 Ala. 134, 35 South. 50; 148 Ala. 343, 42 South. 564; 169 Ala. 606, 53 South. 812.
The sole contention or dispute between the parties on this appeal is the amount and value of the cedar timber removed from the lands in question; all other questions, except such as Ave shall hereafter refer to, have been either settled by agreement or determined on former appeals.
The decree ordering the reference was in part as follows : “It is further ordered, adjudged, and decreed that this cause be and is hereby referred to the register of this court, who will ascertain and report:
“(a) The amount and value of all cedar timber that Avas cut and removed by the defendant, the Gulf Red Cedar Company, through its contractors, agents, servants, or employees from the said S. y2 of section 7 and*610 the S. y2 of section 8, of township 11 and range 13, in Butler county, Ala., between the 18th day of December, 1888, and the 18th day of December, 1898.
“(b) The amount and value of all cedar timber that was cut and removed from said lands by said defendant, the Gulf Red Cedar Company, through its contractors, agents, servants, or employees between the 18th day of December, 1898, and the 6th day of August, 1900.
“(c) In ascertaining the value the register will estimate the value of said cedar timber after the same was cut down, and not as standing timber, but shall make no allowance for the expense of cutting the same.
“(d) The register will ascertain and report the amount due and owing by the defendant, the Gulf Red Cedar Company, as of the date of the reference to each of the complainants for their interests, respectively, in the value of said timber, each of the complainants, except Louisa Crenshaw and Lillian Wagner, being entitled to one-fifth of the ascertained value of all of the timber so cut and removed by the said defendant from said lands from the 18th day of December, 1888, to the 6th day of August, 1900, and the said Louisa Crenshaw and Lillian Wagner being respectively entitled to a one-fifth interest in the value of all the timber so cut and removed by said defendant from said lands from the 18th day of December, 1898, to the 6th day of August, 1900.”
The register, in response to this decree, reported as follows: “The register reports that a great deal of evidence was introduced as to the amount and value of the cedar timber cut by the Gulf Red Cedar Company from said lands, all of which he has considered, but from which he finds it difficult to form an accurate estimate of the quantity of cedar timber cut by the defendant from the T. C. Crenshaw lands; that it appears- however,
“The register further reports that, taking the proven value of said Peagler timber at the sum of $25,000, he-finds that the Crenshaw timber was inferior in quality to said Peagler timber to the extent of at least one-fifth. He, therefore, finds and reports the value of the Crenshaw timber to have been as of the date of the filing of the bill in this cause, on the 6th day of August, 1900, to be the sum of $20,000, and-, deducting one-fifth share of said amount to which the defendant company is entitled under the decree, the register reports as the amount due the complainants of said sum of $20,000, the sum of $15,000 as of the date of the filing of. said bill.”
On appeal from a decree of tbe chancellor, overruling exceptions to tbe report of tbe register in this case, on matters of account dependent upon tbe conclusions drawn by tbe register from the evidence produced before him, all reasonable presumptions are indulged- to support bis rulings, and they will not be disturbed, uniess shown to be clearly wrong. Where tbe register, in bis investigation, has tbe witnesses present before him, he has advantages, in weighing the testimony which neither tbe chancellor nor this court can enjoy; and bis findings on controverted facts should not be disturbed unless based on erroneous conclusions of law, or on illegal evidence, or unless it is manifest that he erred in weighing tbe testimony.
Again, it has been said that where tbe evidence is conflicting tbe finding of tbe register has tbe same weight and effect as tbe finding of a jury, and will not be disturbed on appeal unless palpably erroneous, or unless it would warrant a judge in setting aside a verdict under similar circumstances.—Winter v. Banks, 72 Ala. 409; Lehman v. Levy, 69 Ala. 48; Munden v. Bailey, 70 Ala. 63; McKenzie v. Matthews, 153 Ala. 437, 44 South. 958; Denman v. Payne, 152 Ala. 342, 44 South. 635; O’Kelley v. Clark, 184 Ala. 391, 63 South. 948.
On account of this rule, tbe great mass of evidence has been carefully studied and analyzed; and we have reached tbe conclusion that tbe finding of tbe register as to tbe amount of cedar timber cut from tbe T. O. Crenshaw lands was incorrect.
This being a bill for an accounting between tenants in common, it is not a case in which tbe damages should
Neither do we think this a case in which harsh or excessive damages should be inflicted, because of the commingling of goods, or for the failure to disclose facts necessary to ascertain the real or true damages. We cannot agree with appellees that appellant has willfully or negligently withheld or concealed facts necessary to ascertain the damages. In fact the respondent has produced the only evidence from which the amount of the timber cut and removed can be estimated or ascertained with any degree of certainty. Moreover, it appears to us that the account was kept well and accurately, and that without it neither the register nor this court could ascertain the amount of the damages.
The report of the register states that he found it “difficult to form any accurate estimate” thereof. The report shows that he did not make any finding, from the evidence of the plaintiffs or of the defendant, as to the amount of timber actually cut or taken from the lands-in question by the defendant, but that he reached his conclusion upon that fact purely and solely by a comparison of the amount so cut and taken, with the amount admitted by the defendant to have been cut and taken from the Peagler lands. This, we think, was unauthorized and unwarranted. There was no evidence which warranted the finding made, as to the amount of timber
The plaintiffs-’ evidence does not even tend to support the finding. It contradicts it in every particular. It shoAvs, comparatively speaking, that there Avas 10 times more on the CrenshaAV lands than there Avas on the Peagler lands; but this comparative evidence does not tend to show ho ay much the defendant cut or removed from either tract. It relates solely to how much was originally and by nature spread on the tAvo tracts, but not to how much Avas cut or removed therefrom by the defendant. So there was no evidence to justify or support a finding, by comparison, as to- the amount of timber the defendant removed from the two tracts.
The testimony shoAvs without dispute that the Peagler lands, or a part thereof, Avere of the finest timber lands in the country; Avliile the lands here in question had been three times cut- over, and all of the merchant
The. plaintiffs’ evidence in this case satisfies us, as it evidently did the register, that it is too speculative, too uncertain, and too much of a mere guess to afford any basis for an estimate, much less a finding by a register or a jury, as to the amount of timber cut or removed by the defendnt from the lands in question. If any theory of the plaintiffs’ evidence is true, or if the estimate of any one of the plaintiffs’ witnesses of the timber cut and removed is true, the decree in this case should be 10 times what it now is. We do not believe that plaintiffs’ counsel will contend that a decree for the amount at which any one of the plaintiffs’ witnesses estimated the amount of timber cut and removed by the defendant could or should be rendered. The register’s report‘shows conclusively that he did not rely upon the plaintiffs’ evidence as to the amount of timber cut or removed by the defendant from this land. In fact the plaintiffs’ evidence is entirely too indefinite and uncertain to afford basis for even an estimate. The plaintiffs attempt to estimate the amount in two modes: First, by counting and measuring the stumps on the land in question, and then estimating the amount of timber taken -by the defendant, from these data. The evidence indisputably shows that these data were wholly uncertain and unre
The burden of proof was on the plaintiffs to show the amount of timber cut and removed by the defendant, and the value thereof. This they failed to sustain, unless the fact was shown by the defendant’s evidence or by its answers to the interrogatories propounded by the plaintiffs which were in the nature of a bill of discovery. It is made certain by the register’s report that it was this proof, produced by the defendant, that the register relied and acted upon in making his findings, both as to quantity of timber and as to its value. As we have
As we have heretofore shown, however, the register fell into error in attempting to ascertain the amount of timber cut and removed by the defendant from the lands in question by the amount it admitted it had cut and removed from the Peagler lands. There was no evidence or data, apparent by this record, which would justify this comparison, or the finding made by the register as to the amount of timber removed by the defendant from the Crenshaw lands. The only evidence to be found in this record which, with any degree of certainty, shows or tends to show the amount of timber cut and removed from the lands in question by the defendant is the evidence shown by defendant’s logbook, and other admissions by it touching the subject of the inquiry. This book, we think, is shown to be as near accurate as could be expected under existing cricumstances or from the nature of the business. And we find no evidence in this record to justify us in discrediting it. There is no evidence which we find that shows that the book was made or kept for the purpose of defeating this suit or the plaintiffs’ claim for the timber taken from this land. It is possible that it is inaccurate in certain respects; but it is certain that it is the most reliable evidence, the best which the nature of the transactions and this record afford. It certainly amounts to an admission, on the part of the defendant, and justifies, a decree for the amount of timber shown by this book to' have been taken from the land in question.
The decree of the chancellor, in SO' far as it confirms and adopts the report of the register as to the amount of timber cut and removed by the defendant from the T. O. Crenshaw lands, is erroneous, and is reversed; and a decree Avill be here rendered, charging the defendant Avith the amount of timber sIioavu by its logbook, and admitted by defendant to have been removed from the lands in question, plus the $60"worth of timber sold to Martin, which was not shown by the logbook.
The register should have found the amount of timber that was taken from the Crenshaw land as directed, and not the amount that was taken from the Peagler land. There is no evidence to support his finding that there was as much timber cut from the Crenshaw land by the defendant as was cut from the Peagler land. It is evident that the only way the register ascertained the amount of timber cut from the Peagler land Avas by referring to the logbook of the defendant. He should therefore have found the amount of timber taken from the Crenshaw land to have been 4,131,690 pounds, which
Reversed and rendered.