71 Ky. 187 | Ky. Ct. App. | 1871
delivered the opinion oe the court.
George B. Moss, the appellant, and a man by the name of Payne, on the 23d of November, 1868, executed a writing, signed by each of the parties, by which the appellant “ sold to Payne white-oak trees enough on the appellant’s farm to make forty thousand pipe staves, at the price of two dollars per tree, the timber to be cut on a designated part of the farm, and the staves delivered in Columbus; Moss retaining a lien on the staves for the payment of the money, and Payne agreeing to make the staves as quick as the work could be done.” Payne and Stearman, the latter being a partner of Payne, on the same day this contract was made, transferred by writing the benefit of the same to the appellee, Meshew. In a short time after the execution of the contract above alluded to the appellant and Payne executed another contract, reading as follows,
After the entry upon the land by appellees they attempted to haul off the staves, and did in fact take from the land the staves made, or many of them, against the protestations of the appellant. Por the acts of the appellees in entering upon the lands of appellant, and cutting and carrying away his timber, these actions of. trespass were instituted. The two actions were brought and tried together by the consent of parties.
The answer of the appellee, Meshew, contains several paragraphs, and to each and all of them the appellant filed a demurrer. The demurrer was overruled by the court to the first, second, third, and fourth paragraphs of the answer, and the propriety of this ruling will be first considered.
A sale of timber-trees upon appellant’s land, in a number sufficient to make forty thousand staves, did not pass the title to any particular trees, nor give to the purchaser the right to enter and cut the timber without the consent of the appellant. So a sale of all the timber upon appellant’s land, to be cut on a particular part of the farm, suitable to make staves, does not pass the title until the trees are marked and designated so as to identify them.
If A sells to B such of his fat hogs as are suitable for market, and before the hogs are selected by the vendor and vendee for the purposes for which they are sold they die, the loss is not with the purchaser. If after the contract was made between these parties the trees had been blown to pieces by a hurricane and rendered valueless, the loss would have been the appellant’s, in the absence of a delivery either actual or constructive.
The answer filed by the appellee, Meshew, contained no valid defense to the trespass complained of by appellant, and the demurrer to each one of the four paragraphs should have been sustained. The court very properly sustained the demurrer to the fifth and sixth paragraphs of the answer, as they constituted no defen'se whatever to the action. The fifth paragraph alleges, in substance only, that the plaintiff has a doubtful title to the land on which the timber was cut; the sixth paragraph alleges that Payne, the party to the original contract, was by its terms entitled to the wood and blocks not used from the trees in making the staves. This formed no part of the contract, and if it did is not properly pleaded.
The defendant, Hubbard, by his answer denies the commission of the trespass, and this defense, if sustained by the proof, authorized the jury to find the verdict for him. The
The contract expressly gives to the appellant the right to retain the possession 'of the staves until they were paid for; they were at the time on his land and in his possession, and the entry upon the land, and taking the staves off by Hubbard or his driver after the notice, was a tortious act, and for which trespass could be maintained.
The answer of the appellee, Meshew, presenting no defense to the action, and the testimony of Hubbard’s OAvn witnesses making him guilty of the trespass, the court should have aAvarded the aj)pellant a neAF trial.
The instructions have not been considered for the reason that no objections were made to their being given in the court beloAV,' nor are they incorporated in the bill of exceptions. (2 Duvall, —-.)
For the reasons herein indicated the judgment of the court beloAV is reversed, with directions to that court to set aside the judgment, and give to appellant a new trial, and for further proceedings not inconsistent with this opinion. Either party should be permitted to amend their pleadings.