77 Miss. 867 | Miss. | 1900
delivered the opinion of the court.
Eight tenants in common, among them two minors, brought an action for the statutory penalty of fifteen dollars a tree for cutting and removing from their lands five hundred pine trees. The defendant pleaded that he had cut down and removed from the lands of plaintiffs three hundred and sixty-five pine trees, but that he had done so upon a purchase of them from G-eorge Bennett, the sole tenant on the place, who claimed authority to make the sale, and the defendant believed him to have such authority.
The defendant showed that George Bennett was in possession of the locus in quo, and had been- in possession thereof for nine or ten years under a contract of rent or purchase^ and that Bennett claimed to be authorized by the Haleys to sell said timber to be sawed into lumber partly for the use of the place, and partly to have the advantage of a market while the defendant’s sawmill was near by; and that, believing such authority, he cut and sawed into lumber three hundred and sixty-five trees.
Albert Haley, one of the adult tenants in common, and who attended to the management of the place, said in his testimony before the jury that he was not demanding the statutory penalty, but that all he wanted was whatever might be fair and just. It was shown that he had offered to take $300 in compromise of the claim, and had consented that his brother should compromise it at $200. There was evidence also tending to show'- that after Taylor had cut a small part of the timber two of the plaintiffs became acquainted with the fact, and made
The plaintiffs recovered a verdict for $91.25, and had judgment therefor, but take this appeal because the statutory penalty was not given to them. It is strenuously argued that the claim of authority of George Bennett to sell the plaintiff’s timber, of itself, even if believed by Taylor, was incompetent to go to the jury on the question of good faith or for .any purpose whatever, and that if the right to the penalty sued for of some of the co-tenants was affected by any conduct of theirs in inducing Taylor to believe that the cutting of the timber was satisfactory to them, yet the other co-tenants were entitled to recover their portion of the penalty by a peremptory instruction to the jury.
Upon the question of the good faith of Taylor in cutting timber from the plaintiffs’ lands, we think that the declaration of George Bennett of his authority to sell the timber, and the evidence of the sale of the same by Bennett to Taylor was competent evidence to go to the jury, and whether it be sufficient to protect the defendant against the collection of the penalty is alone for the jury. Clark v. Field, 42 Mich., 342.
The right of action of co-tenants for trespass is a joint right, and whatever affects the right of one to recover will affect in like manner the right of each and all the others. The quantum of damages which any one of them may recover is the quantum to which each of the others will be limited. The assessment of the damages must be joint, and cannot be severed by the jury. Merrill v. Inh. of Berkshire, 11 Pick. (Mass.), 269, 274; Preem. on Co-tenancy, § 352; Bradley v. Boynton, 22 Me., 287, s.c. 39 Am. Dec., 582.
It would be incongruous to allow in the same action with a single count one of the co-tenants to recover fifteen dollars per tree and another one less than fifty cents per tree.
Albert Haley, in his evidence before the jury, led them to believe that he only wished for a fair and just sum as damages,
Affirmed.
