48 So. 624 | Miss. | 1909
delivered the opinion of tbe court.
The controlling question .in this ease is whether Mr. Peirce gave tbe appellee permission to enter upon tbe land and cut such timber as was needed for a right of way, and tbe jury by tbe verdict has answered this question in tbe affirmative. This all-important fact renders harmless tbe error of tbe court, if error it was, in charging tbe jury that there could be no recovery of the statutory penalty for cutting tbe trees. In this case tbe right to recover for tbe actual value of tbe timber and tbe right to recover tbe statutory penalty depend upon exactly tbe same question; and, this being settled, one issue must be held conclusive as to tbe other. In other words, since tbe jury has said that permission was given, tbe result would have been tbe same, had tbe court submitted to tbe jury tbe question of statutory penalty, as well as actual damages. Tbe alleged mistake was, therefore, damnum absque injuria.
Tbe third instruction given for defendant is vigorously assailed, because it states that there can be no recovery if Peirce gave tbe appellee verbal permission to enter and construct a railroad, since this charge would preclude a recovery of tbe contract price provided there bad been a contract. But tbe significant fact is “that no contract was shown in tbe testimony, and tbe jury must have understood tbe true purport and apprehended tbe real meaning of tbe charge.
We think tbe power of attorney executed by Mrs. Hicks to Peirce was sufficient to enable her agent to give tbe permission upon which tbe appellee relied, and we think such verbal license is a good defense to this action. Currie v. Railway Company, 61 Miss. 725.
Affirmed.