108 P. 576 | Mont. | 1910
Lead Opinion
delivered the opinion of the court.
This is an appeal from a judgment in favor of the plaintiffs and from an order of the district court of Gallatin county, overruling the defendant’s motion for a new trial.
The action was brought to recover the sum of $2,235.40 as a balance alleged to'be due on an account for work, labor and services performed by plaintiffs in cutting, hauling and delivering railroad ties and other timber, in Bear Canyon, Gallatin county, for the defendant between November 1, 1905, and August 1, 1908. The answer admits the allegations of the complaint and that the amount claimed by the plaintiffs is due them; but it is asserted that the sum of $1,872.30 should be deducted therefrom by way of counterclaim. For such counterclaim defendant alleges that on or about September 24, 1906, the parties entered into an oral contract, by the terms of which plaintiffs were to cut for him all the railroad ties which could be made from the timber on certain lands belonging to him in sections 16, 17, 20 and 28, township 3 south, range 7 east, Bear Canyon, in Gallatin county, for which he was to pay them thirty cents for No. 1 ties, eighteen cents for No. 2 ties, and six and one-half cents per stick for lath timber, to be made from the tops of the tie timber; that pursuant thereto plaintiffs cut a
It is contended (1) that the court erred in admitting and rejecting certain testimony; and (2) that the evidence is insufficient to justify the verdict. There are thirty-five specifications and assignments of error found in appellant’s brief, but they have all been grouped under the two general contentions noted above. We shall first, consider the second 'assignment, and will remark, in passing, that this was peculiarly a case wherein special findings would have greatly simplified the work of the district court, as well as of this court, and would have removed a certain element of uncertainty which has occasioned some embarrassment and much extra research and consideration of the testimony found in the record.
Walter Cooper testified that the contract was made in his private office between himself and Murphy; that in the course of the conversation Murphy said that he was perfectly familiar with the lines of defendant’s lands; that they had a blue-print and a compass; that Murphy was told they must adhere to the lines of defendant’s land, because the price was such that he could not afford to pay a man to direct them, whereupon Murphy said that they were old tie-makers, and as such were familiar with the compass and with running lines, and were perfectly able to look after that part of it; that it was understood they were to cut from defendant’s lands; that he told Murphy that, if they could not keep within the lines, he would not enter into the agreement, because there was “nothing in it.” He also testified that, when the government officials called his attention to the fact that timber had been cut in trespass, he had several conversations with plaintiffs, told them where the trespasses 'complained of were alleged to have been committed, and they said they had cut the timber there. He said: “I told them this would have to be paid for, and I told them I was in a position where I had no option in the matter. I told them I must pay, as having received this property without having knowledge of
I made a memorandum at the time of the contract with Murphy, as follows:
“ ‘Bozeman, Sept. 24, 1906.
“ ‘Made contract with Murphy & Ryan to-day to make and deliver on my flume all railroad ties that can be made from timber found on my land, situated in sections 16, 17, 20 & 28, as shown by blue-print of same in 3 S. 7 E. Bear Canyon, for which I agree to pay 30c each for No. 1 ties and 18c for No. 2 ties; for lath timber made from tops 6%e per stick, for sticks 4% in. to 8 in. in diameter at top and 8 ft. long, delivered on flume, and received and inspected from time to time as delivered.
“ ‘Agreement with Jack Murphy.
“ ‘Walter Cooper.’
“Says no ties on 17.”
George Bramble testified: “Murphy said to me, ‘We got over the lines—cut timber over the lines.’ I says, ‘Aren’t you afraid to go in there and making trouble of it?’ He says, ‘No, it will only cause the old man (meaning Cooper) to pay stumpage.’ I says, ‘The timber isn’t very good, is it?’ He says, ‘Yes, the timber is fine.’ ” Murphy denied having such conversation.
H. W. Trask testified that he was bookkeeper and confidential man for Mr. Cooper. He said: “I had charge of the business in Bear Canyon. I was able to go once or twice a month and look over the various work personally. I had been assured at all times by both Murphy and Ryan that they knew where Mr. Cooper’s lines were and had run them. * * They had given me to understand that they had better knowledge than anybody else. The question of the locality of their cutting with reference to their general work was discussed frequently. * *= * I have had conversations with them 'as to what timber was comprehended under the contract, to the effect that they were to cut strictly within the lines of Mr. Cooper’s lines, =» =:? * and I have asked both Murphy and Ryan as to whether or not they were cutting within Mr. Cooper’s lines, and they both assured me they were. They had a blue-print or map of Mr. Cooper’s lands and also a standard make of surveyor’s compass. I saw one of their men making ties off of Mr. Cooper’s land, and they told me they would move him off right away. Neither of the plaintiffs at any time made any objection to a settlement of those trespasses; nor did they at any time make any dispute or deny their commission of the trespasses.”
David T. Conkling testified: “I am in charge of the Gallatin Forest. I had a conversation with Ryan, and he told me they cut so much stuff from government land because they were looking for the best timber they could find. In the conversation that I had with them neither of the plaintiffs ever made any denial of the fact that they had committed these trespasses, =::= * # although I never had a positive admission from them that they did the cutting. It was a generally understood fact, and no denials were made by them. * * # I asked Murphy if he was furnished a blue-print, and he told me he had one. * # ’::= The lines referred to were imaginary lines and were hard to find.”
J. W. Ryan, one of the plaintiffs, testified: “The reason we cut on government land was that there was no way of telling where we were working. They were supposed to be their lands. We never found any lines there to show us. * # * A blueprint came in there, I guess it was shortly prior to the time this contract was made.” In answer'to the question, “Did you commit these trespasses on the ground in question?” he answered, “We done this cutting alleged to have been in trespass which was charged against Mr. Cooper, except a small portion of it.”
We think it altogether unreasonable to suppose, in view of the foregoing testimony, that the jury could have found that the timber cut in trespass, for which Cooper was obliged to pay, was not cut by plaintiffs and their men. Both plaintiffs virtually confessed that the greater portion of it was cut by them. So that, in order to arrive at the conclusion that they were entitled to a verdict for the full amount of their claim, the jury
Viewing this testimony in its most favorable light, and bearing in mind that the burden of proof rested upon the defendant, it not only fails to prove the affirmative allegations of the replication, but in our judgment substantially corroborates the testimony of the defendant himself. The latter’s motion for a directed verdict should have been sustained.
We recognize the difficulty of the plaintiff Murphy’s position. It appears that he was unable to substantiate the allegations of
In deciding this appeal we have confined ourselves strictly to the case presented to this court. This we believe to be the proper course for an appellate court to pursue. It is not to be understood, however, that the decision establishes the precedent that the correct theory of the relative rights and obligations of the parties was adopted in the court- below. We have not considered that question.
The judgment of the district court and the order denying a new trial are reversed, and the cause is remanded for further proceedings.
Reversed md remanded.
Rehearing
On Motion for Rehearing.
delivered the opinion of the court.
Respondents’ counsel claim that the court overlooked the question whether the appellant’s counterclaim states facts sufficient to constitute a cause of action. In view of what is said in the last paragraph of the foregoing opinion, we do not think the learned counsel can consistently claim that it was the court which overlooked the question. We do not decide that the counterclaim is insufficient. It is too late to raise that question for the first time on motion for a rehearing.
Rehearing denied.