119 F. 70 | 8th Cir. | 1902
Lead Opinion
after stating the case as above, delivered the opinion of the court.
The- chief complaint of the government concerning the trial of this case is that the defendant was permitted to introduce certain evidence tending to show an alleged compliance on his part with the act of June 3, 1878 [U. S. Comp. St. 1901, p. 1528], and that the jury was instructed that, if they believed from this evidence that the defendant
“Every owner or manager of a sawmill, or other person felling or removing timber under the provisions of this act, shall keep a record of all timber so cut or removed, stating time when cut, names of parties so cutting ■ the same or in charge of the work, and describing the land from whence cut by legal subdivisions if surveyed, and as near as practicable if not surveyed, with a statement of the evidence upon which it is claimed that the land is mineral in character and stating also the kind and quantity of lumber manufactured therefrom, together with the names of parties to whom any such timber or lumber is sold, and shall not sell or dispose of such timber or lumber made from such timber, without taking from the purchaser a written agreement that the same shall not be used except for building, agricultural, mining or other domestic purposes within the state or territory; and every such purchaser shall be required to file with said owner or manager a certificate, under oath, that he purchases such timber or lumber, exclusively for his own use and for the purposes aforesaid.”
The evidence, the introduction of which is assigned as error, is that about September 10,1898, the defendant made an oral agreement with a certain mining company to sell it lumber to timber the Mabel-Grace mine from time to time as this lumber should be needed for that purpose; that he delivered about 1,500 feet of lumber under this agreement; that he was then stopped from proceeding with his contract by the writ of replevin; that afterwards, and on January 10, 1899, he procured a written agreement from this purchaser to the effect that this lumber had been and would be used for the purpose of timbering its mining property in the state of Colorado, and for no other purpose; that he made a similar oral agreement about September 6, 1898, for the sale of lumber to one Swope, a road overseer, and sold him 720 feet of lumber to improve the county road; that about January 7, 1899, Swope made a written contract to use this lumber for that purpose only; that these purchasers made certificates in the year 1899 that the timber they bought of the defendant was purchased to be used for the purposes stated in their respective agreements; that as the defendant cut the logs from which this lumber was manufactured he made daily memoranda on slips of paper of the number of feet cut, where it was-cut, and who cut it, and filed them in his' office; that after his business was stopped by the seizure of the lumber by the marshal he made up from these slips a record in a book which was received in evidence, and which contained the statements of fact required to be recorded by the rule which has been-quoted, and that after this record was completed he destroyed the slips. The objections to the various items of this evidence are many and varied, but they are all founded on the proposition that it did not tend to show a compliance with the rule of the secretary under consideration. For the purpose of the decision of this case, but' with
This rule of the secretary of the interior requires that the owner or manager of a sawmill “shall not sell or dispose of such timber or lumber made from such timber, without taking from the purchaser a written agreement that the same shall not be used except for building, agricultural, mining, or other domestic purposes within the state or territory.” The defendant sold and disposed of three lots of lumber, which were delivered to the road overseer and to the owner of the Mabel-Grace mine in September, 1898, without taking the written agreements required by this rule until some time in January, 1899. It is assigned as error that the court instructed the jury that they might find from these facts a substantial compliance with the rule, and might return a verdict for the defendant. Is it a substantial compliance with a rule that no sale or disposal of property shall be made without taking a written agreement, to sell and dispose of the property without procuring any such agreement, and then to obtain one three or four months ° after the sale or disposition of the property has been effected? It is said that the rule does not specify the time when the agreement shall be taken; that it does not require it to be taken before or at the time of the sale or disposal of the property; and that the procuring of the agreements three months after the sales was a literal fulfillment of the requirements of the rule, especially in view of the fact that these were continuing contracts, agreements to sell and deliver the lumber from time to time as the purchasers should need and order it. But, when the terms and -purpose of the rule are considered, it seems clear that this cannot be the intent with which the secretary prescribed this requirement, nor can it be its true interpretation. The natural and rational meaning of the prohibition of one act without the doing of another is that the first shall not be done unless before or at the same time when it is done the second is also completed. The manifest pur
This conclusion has not been reached without a consideration of the contention of the defendant that the errors in the trial of this case were not prejudicial to the government, and would not warrant a reversal of the judgment, for the reason that under the pleadings and evidence the plaintiff could not have recovered in any event. His theory is that the amended complaint, which is a complaint in replevin, superseded the original complaint, which was a complaint in conversion; that counsel for the government sought to recover at the trial upon the original complaint only; and that, as he was not entitled to recover in conversion, he was not entitled to recover at all. The amended complaint makes no reference to the original complaint. It is complete in itself, and it states a cause of action for the recovery of the possession of logs and lumber, or for their value, and nothing more. It does not allege or pray to recover damages for the taking
Moreover, the judgment in this case leaves the real issue—the ownership of the proceeds of the lumber in the registry of the court— undetermined, and open to subsequent litigation. There have already been two mistrials of this case. This court has twice read the evidence which the respective parties have been able to produce relative to the character of the taking of the timber and the intention and purpose of the defendant, and, in view of the protracted litigation, which this action is producing, it does not hesitate to express its opinion that the strong probabilities are that the ultimate result of this litigation, if continued, will be that the defendant will be found to be an innocent or unintentional trespasser, and entitled to all the proceeds of the lumber except its stumpage value of $1 per 1,000-feet; and it suggests that if the parties, within 60 days after the mandate of this court is filed in the circuit court, shall stipulate that the United States may recover and be paid one-seventh, and the defendant, Gentry, may recover and be paid six-sevenths, of the proceeds of the lumber and logs in the registry of the court, without the taxation of any costs against either party, a judgment to that effect might be rendered upon this stipulation, and payments could be made accordingly. Such a course of proceeding would probably be more-beneficial and less expensive to each of the parties to this litigation than farther trials of this action. If no such stipulation should be made, the case must be tried again.
As the pleadings now stand, the main issue is the ownership of the proceeds of the logs and lumber in the registry of the court. If the-defendant was not a trespasser, he is entitled to this amount. If he was an innocent trespasser, he is probably entitled to about six-sevenths of it, while the government is entitled to one-seventh. If he was a willful trespasser, the United States is entitled to the entire fund. The judgment of the circuit court is reversed, and the case is-remanded to the court below for further proceedings not inconsistent with the views expressed in this opinion.
Dissenting Opinion
(dissenting). The brief of the plaintiff in error does not comply in any respect with the requirements-of rule 24 of this court (31 C. C. A. clxiv, 90 Fed. clxiv), which declares that errors not specified according to that rule “will be disregarded.” The technical character of the plaintiff’s case makes it one-for the rigorous application of this rule. Tubbs v. U. S., 44 C. C. A. 357, 105 Fed. 59; City of Lincoln v. Sun Vapor Street Light Co., 19 U. S. App. 431, 8 C. C. A. 253, 59 Fed. 756; Assurance Co. v. Polk, 44 C. C. A. 104, 104 Fed. 649; Oswego Tp. v. Travelers’ Ins. Co., 36 U. S. App. 13, 17 C. C. A. 77, 70 Fed. 225; Van Gunden
If this rule is disregarded, and the merits gone into, it should be affirmed. Three small lots of lumber, amounting in the aggregate to a few hundred feet only, were delivered before the required written agreement was signed, but the sale was of so much lumber as the road overseer might need in making and repairing the roads in his district and of a small quantity a miner might need in his mining' operations. When the defendant agreed to supply this lumber, no fixed quantity was or could be agreed upon that was to be determined by its application to the purposes and uses for which it was purchased. As soon as this amount was ascertained, the required written agreement was signed. This was not only a substantial,' but a full, compliance with the rule of the secretary of the interior.
The verdict and judgment for the defendant ex necessitate disposed of the fund in court, because that fund was derived from the sale of property, which, though claimed by the United States at the inception of the suit, the jury found belonged to the defendant, and this finding necessarily entitled him to the fund. It is unreasonable to suppose that the owner of the property was not entitled to the proceeds of its sale. On motion the court must' have ordered the proceeds of the sale paid to the owner of the property sold, in accordance with the uniform- practice in such cases.