128 P. 85 | Idaho | 1912
This action was brought against the Rose Lake Lumber Co. and the Federal Mining Co., two corporations. It is alleged in the complaint that the plaintiff, on or about the first day of November, 1909, was the owner and in the possession of certain timber described as stulls which was lying in the Coeur d’Alene river in Kootenai county; that the defendants, without any right, wrongfully and unlawfully took and converted said stull timber and loaded it on cars, and transported it from said county to some point in Shoshone county, state of Idaho, and that said timber was of the value of $547.28, and prayed judgment for that amount, to which complaint the defendants interposed separate demurrers, which demurrers were overruled and separate answers were filed, putting in issue the material allegations of the complaint. The case was tried by the court with a jury and the jury rendered a verdict in favor of the plaintiff for the sum of $400, and judgment was entered thereon. A motion for a new trial was denied and this appeal is from both the judgment and the order denying a new trial.
(1) The appellant assigns as error the action of the court in overruling the demurrers to the complaint. One ground
(2) Another assignment of error is that the court erred in not sustaining said demurrers on the ground that the complaint is ambiguous, unintelligible and uncertain, and under this assignment of error counsel contend that there is no sufficient description of the timber alleged to have been converted, as it is there alleged that the timber referred to was known as stull timber and did not give the number of linear feet or any other description thereof; that it does not state the quantity of timber or the location or the character or kind of timber converted; that the appellants had a right to know the description of said timber and whether it was branded or unbranded, the kind of timber and the size and length of stulls; that appellants had a right to know these facts in order to have their evidence ready on the trial to establish their defense; and that appellants were compelled to go to trial without having a sufficient description of the timber alleged to have been converted.
In 21 Eney. PI. & Pr., p. 1068, it is stated that the goods claimed to have been converted should be described with convenient certainty in order that the jury may know,what is meant and in order that the defendant may be protected from another action based upon the same cause of action. In 38 Cye. 2067, it is stated that as a plaintiff in trover does not seek the recovery of a specific chattel or chattels, a general description which states the nature or kind of goods alleged to have been converted, and also the quantity, value or location, will suffice; but a declaration which contains no description of specific property is fatally defective. In the case of Edgerly v. Emerson, 23 N. H. 555, 55 Am. Dec. 207, the complaint described the property converted as “divers goods, to wit, a lot of goods being in a store in Alton.” That description was held bad for uncertainty. The court said: “It [the de
(3) It is next contended that the court erred in refusing to submit to the jury for their answers eleven interrogatories proposed by appellants. On the trial the evidence showed that the respondent was the owner of 8,876 linear feet of stulls contained in a boom in the Coeur d’Alene river, near the town of Dudley, Idaho, which is a few miles above Rose Lake, Idaho, at which point the appellant, the Rose Lake Lumber Co., maintains a sawmill; that said company had 15,000 linear feet of stulls at Dudley, and between Dudley and Rose Lake, ten booms, each containing on an average 7,000 linear feet of stulls or a total of 85,000 linear feet of unbranded stulls; that on or about the first day of February, 1909, high water suddenly came, and, owing to the heavy flow of ice, about six million feet, board measure, of saw-logs and 500,000 linear feet of stull timber came down said river and lodged against a point of rocks in front of said Rose Lake mill and caused a jam. Among the logs in that jam was the respondent’s stull timber, the value of which is sought to be recovered in this action. The Rose Lake Lumber Co. endeavored to effect a sorting of the jam, but the Coeur
It appears from the evidence that the Log Owners’ Association, -which attended to the sorting of logs in said jam, took
Upon that evidence the interrogatories referred to were proposed, which were in regard to whether the stulls were converted before or after the formation of the jam or prior to or after the stulls were sorted out of the jam,- how many stulls belonging to the plaintiff were received by the defendants, or either of them, from the Log Owners’ Association after the logs had been sorted; how many stulls belonging to plaintiff did the lumber company or the mining company tow back to Dudley; how many stulls belonging to plaintiff did the lumber company load at Dudley and how many were shipped to the mining company, and what was the market value per linear foot of the 8, 10, 12, 14, 16 and 18 inch stulls; what was the price for loading the stulls from the river on to the cars per linear foot; what was the cost of sorting and towing the unbranded stulls which came out of the jam to Dudley; did the plaintiff make a demand upon the defendants, or either of them, for the return of said stulls, or their value, stating the amount and kind of stulls and their value, and if the jury found that the defendants converted stulls belonging to the plaintiff, what amount of stulls, linear foot measure, did the defendants convert, and what was the size of such stulls and what the total value of the same.
Under the provisions of sec. 4397, Rev. Codes, in an action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict and in all other cases the court may direct the jury to find a special verdict in writing upon all or any of the issues. This is an action for the recovery of money only, and under
In Burke v. McDonald, 2 Ida. 679, 33 Pac. 49, the court-held that the discretion of the court in submitting questions to a jury was not,absolute, but must be properly exercised, and that it would be erfor to refuse to submit special issues when a particular request therefor is made and the issues are such as to make their special submission desirable.
In the case at bar, it would have been perfectly proper, and perhaps better, for the court to submit some interrogatories to the jury, but we do not think it was reversible error for the court to refuse to do so. If the evidence showed that the stulls in question were caught in a jam occasioned by a rise in the river, and that the jam was sorted by the Log-Owners’ Association and only 30,854 linear feet of stulls out of a total of 85,000 feet which the lumber company had in said jam were delivered to them by said association, it does not seem reasonable that the appellants should be held for more than the proportion which 8,876 bears to the number of feet of stulls which the lumber company and the respondent had in said jam, unless the evidence showed that appellants had received more than that proportion of respondent’s stulls.
It is true respondent testified that he identified his stulls in the jam. He evidently meant that he saw some of them there, — not each particular timber. He further testified that he identified twenty-six of them on one carload, sixteen on another and nine on another. He thus identified fifty-one of his stulls, but there is nothing in the record to show the size or length of those stulls, and if the Log Owners’ Association took possession of his stulls and the appellants did not receive them, appellants ought not to be required to pay for them, — at least not to pay for any more than they received, or respondent’s proportional part of the 30,854 linear feet of stulls which were delivered by the Log Owners ’ Association to the appellant lumber company. The plaintiff testified that his stulls were in said jam, but his evidence does not show
(4) It appears from the record that th'e Log Owners’ Association operated or claimed to operate under the provisions of chap. 32, title 8, Rev. Codes, secs. 1494 to 1505, inclusive, and took charge of said jam and separated the logs contained therein, and it is contended that the court erred in refusing to give appellants’ instruction No. 7, which is as follows:
“The jury are further instructed that unless the stulls of the plaintiff were branded with a registered brand, the same are in law considered as unbranded logs; and if you find that these logs became intermingled with others in the jam occurring at Rose Lake, you are instructed that the plaintiff lost title to the same, and they became prize logs and he cannot recover.
*720 “A legal brand is one whose diagram and a full and complete written description of which, signed by the owner or claimant, has been recorded in the office of the inspector of logs for the district in which the logs were located. In this case, at Harrison, Kootenai county, Idaho.”
Said instruction contemplates that the logs belonging to the respondent within the meaning of said statute were unbranded logs, and therefore became prize logs under the provisions of sec. 1504, Rev. Codes, which section is as follows:
“All prize logs shall be divided between the owners in each subdistrict in proportion to the number of logs owned by each person or company, respectively, in each subdistrict. Prize logs are hereby defined to mean such logs as bear no mark or marks, and all logs bearing marks not recorded or claimed within one year after any general drive. Any person with whose logs or timber in any waters of this state such prize logs or timber shall become so intermixed that they cannot be conveniently separated for the purpose of being floated to the market or place of manufacture, may drive all such logs or timber with which his own may be intermixed toward such market place, when no special or different provision is made by law for driving the same, and shall be entitled to reasonable compensation from the owner for driving such logs or timber, to be recovered after demand therefor on said owner or agent if known; and he shall have a prior lien thereon until thirty days after they arrive at their place of destination to enable him to attach the same; and if the owner thereof ean-not be ascertained, the property shall be liable to be sold according to law, and enough shall be disposed of to defray the expenses thereof.”
The only marks which the evidence shows the logs of respondent had were a “I” or “V” cut with an ax. It also shows that those marks were not made for the purpose of identifying the logs from any others, but simply for the purpose of keeping track of the number of logs which each man cut in the timber. Said marks were not recorded as required by law, and it is clear from the evidence that the logs bore no mark or marks as contemplated by said section 1504, and
If respondent could identify his stulls by marks he had placed upon them, even though such marks were not recorded, he was entitled to recover them. Prize logs, within' the definition as given by said section 1504, are such logs as have no marks or brands upon them whatever, or such logs as have brands or marks which are not recorded or claimed within one year after any general drive. Said section has particular reference to logs or timber conveyed by drives on rivers or lakes, and as the logs referred to in this case became commingled by a rise of the river and floating ice therein, without any fault of either party, the equitable way of distributing such logs as could not be identified by marks or brands would be to give to each owner his proportionate share of said logs according to the quantity of logs he had in such jam. Or, in case such logs were sold as prize logs, then he should have his proportionate share of the proceeds of such sale. In such eases it often occurs that many of the logs are lost entirely. In such a commingling of logs, neither party would forfeit any right to his logs, and each might claim and would be entitled to his specific quantity of timber, though he might not be able to identify his specific logs. It was held in Martin v. Mason, 78 Me. 452, 7 Atl. 11, that where logs bearing the same mark and quality become intermixed before they arrive at the mill without the fault of either party, each party is entitled to his own logs; or in absence of any distinguishing mark, to his proportional part thereof, and that if the defendant in that action used or converted to his own use more than his proportional part, he would be liable for the amount so converted, without a special demand.
So in the case at bar, if the appellants appropriated to their own use any stull timber belonging to the respondent,
It is next contended that the court erred in refusing to give appellants’ requested instruction No. 8, which is as follows:
“If you find from the evidence that the defendants or either of them converted certain stulls of the plaintiff, I instruct you that in arriving at your conclusion as to the number of stulls for which defendants must answer, you are to take into consideration the percentage of stulls lost in the jam and deduct such percentage of loss from the (number) of stulls belonging to the plaintiff which went into the jam.”
The evidence shows that the lumber company had 85,000 linear feet of stull timber and the respondent had 8,876 linear feet that went into said jam, making a total of 93,876 linear feet, and there was turned over to the lumber company only 30,854 feet of stulls by the Log Owners’ Association who took possession of said logs and sorted them. The respondent
From what has been said in this opinion, on a retrial of the case, no doubt, proper instructions will be formulated and given to the jury in accordance with the views expressed herein. It is clear from the law and the evidence that the plaintiff was not entitled to recover from the defendants more than the value of the stulls identified as his own and his proportionate share of the balance of the stulls turned over to the lumber company by the Log Owners ’ Association.
The judgment must be reversed and a new trial granted. Costs awarded to the appellants.