81 So. 334 | La. | 1919
This suit was brought to recover from the Louisiana Cypress Lumber Company and its president, as debtors in solido, $315,000, alleged to be the value of cypress timber taken from a sixteenth section. The suit against the president was dismissed; the evidence being that he had acted only as president of the lumber company in the transactions complained of. Judgment was rendered against the lumber company for $11,248.52; and, as the plaintiff alone has appealed, the only question for decision is whether the judgment should be in
Appellant complains that the district judge erred in ruling that the defendant’s liability was governed by the doctrine of the case of the State v. E. B. Williams Cypress Co., 131 La. 62, 58 South. 1033, where it was held that the defendant, who, under an unauthorized and invalid contract with the school board, had cut and taken the forest timber from a school section and converted it into lumber and cross-ties, was legally — though not morally — in bad faith, and was therefore liable for the manufactured product of the timber, less the cost of logging and manufacturing it. Appellant contends that the defendant in this case should be condemned to pay the value of the lumber into which the timber was converted, without deduction for cost of logging or manufacturing.
In this case, as in the case of the Williams Company, the defendant bought the timber, or acquired what defendant believed was the right to cut and remove it, from the school board of the parish in which the school section was situated. The school board, in this instance as in the Williams Company’s Case, had no authority in law to make the contract. It is not contended, however, that the defendant, or the school board, was guilty of dishonesty or fraud in the transaction. There is not an allegation in the petition that could be construed as a charge that defendant was guilty of collusion with the school board, or fraud, dishonesty, or imposition in the manner of acquiring the timber. The charge is merely that a certain contract previously entered into between the school board and a third party, from whom defendant acquired it, and a renewal of the contract, given afterwards by the school board to defendant for a cash consideration, were “illegal, null, and void, and should be so decreed, for the following reasons, to wit.” The reasons, stated broadly, are: (1) That the board did not submit the proposition to a vote of the residents of the township; (2) that the board did not give notice of the time when or place where the property would be sold; (3) that the contract, purporting to be a lease, but purporting also to give the right to take away the standing timber, was not awarded to the highest bidder or offered at public auction; (4) that the contract did not have for its object the conservation of the property, but purported to give the right to take away the timber, which was.the only value of the property, and that it was therefore prima facie illegal; (5) that the price paid was inadequate; (6) that the contract was not authorized by any act of Congress or statute of the state, and could not have been valid without such authority. The prayer of the petition was that the contract be decreed illegal, null, void, and of no effect, that the defendants 'be decreed to have been possessors in bad faith, and be ordered to return the lumber into which the timber had been manufactured, amounting to 9,000,000 feet board measure, or, in the alternative, be condemned, in solido, to pay the value thereof, $315,-000, with legal interest from judicial demand. The suit, therefore, is not an action for trespass, but an action for nullity of a contract and for restoration of what was received by the defendant in virtue of the contract.
Our opinion is that the district judge was correct in his ruling that the basis for the calculation should be the value which the manufactured product had at the time the timber was taken and .converted into lumber. To take the value at the time the suit was filed would be a matter of speculation. The plaintiff has no more right to the advantage resulting from an increase in value than the defendant would have to the advantage if the value had decreased. We cannot assume that the timber would have remained unsold and uninjured when this suit was filed, 17 years after the trees had been cut and taken away, if the defendant had not made the contract with the school board. As a matter of fact, the school board had made the contract with another party, from whom defendant acquired it after a part of the timber had been felled and taken away. Hence the loss that the plaintiff sustained on account of the defendant’s dealings, in this case, must be determined by the value the lumber had at the time of the operations complained of.
Butt log (24.5-4)2 x le............ 420.25
Top log (22i=4) xlg............. 368.56 /
Total board measure of log
22.1" x 34' ......................788.81ft.
The 6,844 logs, averaging 22.1 inches' in diameter at the small end and 34 feet in length, therefore contained 5,398,615 feet of timber.
The evidence is that the cost of logging was about $5 per M feet of timber. Accepting the figures furnished by the president of the defendant company as to cost and values, we find that, of the 5,398,615 feet of timber taken, the one-third, 1,799,538 feet, that went into lumber worth $22 per M feet, produced $39,589.84; and that the 1,799,538 feet of timber that went into shingles, at 7,000 shingles per M feet of timber, at $1.60 per M shingles, produced $20,154.82. Hence the total value of the manufactured product was $59,744.66. The cost of logging and manufacturing of 1,799,538 feet of lumber, at $12 per M, was $21,594.45, and of 12,596,766 shingles (1,799,538 feet at $8.50) was $15,296.07; hence the total cost of logging and manufacturing was $36,890.52, which, deducted from the value of the manufactured product, leaves $22,-854.14, for which the defendant company is answerable.
We have made no allowance for the cost of logging the third of the timber, 1,799,538 feet, which the president of the defendant company said was of no value. Our judgment, from other evidence in the case, is that the witness underrated the quality of the timber. Bearing in mind that the lumber tally usually overruns the log scale of cypress timber about 30 per cent, (particularly as this timber was measured), bearing in mind, too, that this timber was docked for defects, and that due allowance for slabs is provided for in the Doyle rule, and bearing in mind, above all other considerations, that the defendant company paid the school board a cash consideration for a renewal of the contract after having sawed a part of the timber, and then continued logging and sawing it for a year or more, we doubt that one-third of the log scale went into the furnace or the slab pile, and that the manufactured product accounted for only two-thirds of the log scale. If it be so, however, the defendant is not entitled to any credit for the cost of labor expended in felling and taking away the 1,799,538 feet of worthless timber belonging to the state.
The judgment appealed from is amended by increasing the amount to $22,854.14, and by allowing legal interest thereon from judicial demand, that is, from April 10, 1917; and, as amended, the judgment is affirmed, at defendant’s cost.