Long v. Davidson

77 Wis. 509 | Wis. | 1890

Oole, O. J.

It cannot well be demed that the plaintiffs originally owned the timber from which the logs in controversy were cut. They were the owners of the lands and, of course, of the standing timber upon them. In March, 1887, they entered into the contract- with Thompson by which they agreed to sell the lands to him for $2,000, and gave Thompson the right to enter upon the lands,- and cut the timber into saw-logs, and haul the logs to Levis creek, and bank the same; but the contract provided that the logs should be and remain the property of the plaintiffs until the full performance of the contract by Thompson, or until the $2,000 were paid. The contract provided how the logs cut from these lands should be marked; that is, for a bark or side mark, with the letters KYI, and for an end mark, with, the letters ADT, stamped thereon, and the letter P was to be marked on the end with chalk. It is not claimed that this chalk mark was put on the logs, but the other marks were put on, and it is' said that they were the same marks as Thompson put upon the logs which he furnished on his contract made with the defendant Davidson in October, 1886. In fact, under this latter contract, the logs were to be marked ADT for the end mark, and N Y X X X for the side mark, and, for convenience, it was verbally agreed that two X’s should be omitted from the side mark, and these two letters were left off from nearly all the logs which were delivered on the Davidson contract; so the logs which were cut from the plaintiffs’ lands, and those under the Davidson contract, could not be distinguished from each other by the marks. The logs were all banked upon the same stream, and were intermingled in running and coming to the possession of Davidson. Indisputably Dmid-son has had logs which belong to the plaintiffs, which were cut from their lands, and why should he not pay for them ? "We perceive no reason or principle of law, which, upon the established facts, exonerates him from paying at least to the extent of the unpaid purchase money due for the lands from which the logs were cut, and this is all they did recover in the action.

Put it is said that the acts and conduct of the plaintiffs have been such as ought, both in law and equity, to estop them from asserting ownership in the logs as against Davidson. It is insisted they should not have authorized the logs cut from, their lands to be marked with the private recorded log-mark of Davidson, so that the different logs could not be readily distinguished. In answer to this objection it is said the evidence fails to show that the plaintiffs knew what Davidson’s log-mark was, or that they authorized it to be placed on their logs; and such is the effect of the testimony, as we understand it. There is no ground for saying that the plaintiffs’ logs were marked with Davidson’s private re•corded mark, or that they knew anything abont his contract with Thompson. As we have said, if the plaintiffs had read that contract, they would have seen that it clearly provided that the logs furnished under it should bear a different mark from the one which was placed on their logs. "What Davidson''s legal recorded log-mark was, when the plaintiffs made their contract with Thompson, does not satisfactorily appear from the evidence. He claims that it is the same as the mark authorized to be put on the plaintiffs’ logs, but that fact is not established by the certificate of the lumber inspector which was introduced in evidence. Davidson himself testifies that he had recorded and used a mark in his contract,'— 1ST Y X X X, side mark,— but when h.e recorded a different side mark does not appear. The presumption is very strong that his recorded side mark was ÍTTXXX when he made-his contract with Thompson for the delivery of the 6,000,000 feet, because that was the side mark which was to be placed on the logs under that agreement. So we can see no ground for saying that the plaintiffs are estopped from asserting their rights in the logs, because of the manner they were marked. It certainly does not appear that they had any notice or knowledge that the mark put upon them was Davidson’s recorded log-mark, and the inference is very cogent that it was not; and we think the evidence is conclusive that Davidson was not misled by the mark on the plaintiffs’ logs, and that he knew all about their contract with Thompson before he obtained possession of them. He knew all about the plaintiffs’ title, and that the logs would remain their property until the purchase price of the lands was paid. He does not therefore stand before the court, and cannot be regarded, as an innocent purchaser of the plaintiffs’ property for value; nor have the plaintiffs done any act which should preclude them from asserting their ownership of the logs.

~We are at a loss to see the materiality of the proposed amendment, in regard to the assignment and insolvency of Thompson before the commencement of this action. How can that fact affect the plaintiffs’ right to recover the value of their property? It is true Thompson was in default on his contract with the plaintiffs. He had failed to make payments as that contract provided, but the plaintiffs had not brought suit against him as they might have done; but how this forbearance on their part raised any equities in favor of Dmidson we cannot understand. It is sufficient to say that Dmidson knew all about the plaintiffs’ claim to the logs before they came into his possession. He had ample opportunity to protect himself against loss by reserving money on his contract with Thompson. It does not appear that he has been in any way injured by the delay in suing Thompson.

We are also unable to see how the defendant could have been prejudiced by the admission in evidence of the contract between Thompson and the plaintiffs. That contract would show that Thompson was not a trespasser in cutting their timber; it would also show the extent of their interests in the logs. The plaintiffs did not recover the full value of the logs, but only the amount of the unpaid purchase money due on this contract. That was about the value of the stumpage, as found by the jury. Many of the questions in this case were considered and passed upon in Lillie v. Dunbar, 62 Wis. 198, and need not be further discussed. It is very clear to our minds that Thompson could give Dmidson no greater or better title to the logs than he had under his contract, and, as the logs were to remain the property of the plaintiffs until the lands were paid for, it seems plain they are entitled to recover to the extent of the purchase money. We see no error in the case, and affirm the judgment'.

By the Court.— Judgment affirmed.