106 F. 447 | 8th Cir. | 1901
after stating the case as above, delivered the opinion of the court.
A reference to the two instruments executed by Abbott and Teller discloses that the parties had in contemplation something besides the ties to which the government laid claim in the notice given by Abbott on July 22d. After reciting the existence of that claim, the instrument signed by Teller proceeds to recite that Abbott “is investigating whether or not certain other ties now” — that is to say, on August 3d— “in the possession of Teller,’-’ and in ihe same region where the ties were cut prior to July 22d, were unlawfully cut. Tire instrument then
“In consideration of the premises and in consideration of the fact that the said George B. Abbott is about to release said ties so claimed by the United States, and is about to release from any intended seizure or claim any of said ties now being investigated by the said George B. Abbott, the said Teller does agree to and with the United States of America,” etc.
The instrument signed by Abbott, referred to as the “release,” in clear and unambiguous language purports to release “from any and all claims of the United States of America certain ties now” — that is to say, 'August B, 1898 — “in the possession of J. 0. Teller” at the camps from which the ties in controversy came. No question is raised by the pleadings or assignment of errors touching Abbott’s authority to act for the United States and to execute the release signed by him. The two instruments, therefore, each executed in consideration of the other, constitute a contract between the United States and Teller, and must be construed so as to give effect, if possible, to each and all of its provisions.
The several excerpts to which attentipn has just been called clearly show that the parties to the contract had in mind something besides the ties cut prior to July 22d, to which Abbott’s notice of that date relates, and no reason is perceived why the language employed in the contract should not be given its ordinary and natural meaning; and, when such language clearly comprehends all ties then in the possession of Teller, no forced limitation should be imposed upon it so as to exclude any of such ties from its operation. In our opinion, the language is too broad and comprehensive to admit of the construction now claimed by counsel for the United States. There was no error, therefore, in the ruling of the court below that the contract of August 3d devested the United States of the title and right of property in all ties cut prior to August 3, 1898. This leaves only such ties as were cut after that date subject to further consideration, and it is important to bear this in mind in considering exceptions to the action of the trial court in excluding evidence.
George B. Abbott was sworn as a witness on the part of the plaintiff, and during his examination testified that he had no personal knowledge as to how many ties were cut by the defendant, but that he had taken affidavits of choppers who had worked for the defendant. After he had thus disqualified himself to testify as to the only material question in the case, he was asked this question:
“You may state whether or not, at the time you made the contract and gave the release referred to in the pleadings, the number of ties which were released at the Mullen -creek camp was the number of 18,792.”
This question was ruled out by the court on objection made by the defendant. This ruling was clearly correct. The answer could only have been the result of information gathered by Mm from the choppers, and therefore hearsay, and of no value. Not only so, but an answer to the question as put would have been so remotely related to the only issue left for trial in the case as to be of no substantial value.
Other questions were asked of witness Abbott, and objected to by defendant, and ruled out by the court. To all these questions we
The next assignment of error relates to that portion of the charge to the jury which reads as follows:
“In fixing- the value oí the ties, ii you find from the evidence that any were cut after the 3d day of August, 1808, you must ascertain from the evidence whether they were willfully cue or caused to be cut by the defendant. If you find from the evidence that they were willfully cut after that date by the defendant or by his direction, then the amount to be deducted would be their value su the place where they were taken, with no deduction for his labor or expense. However, if you should find from the evidence that some ties were cut, but that the defendant was an unintentional or mistaken trespasser, then the amount to he deducted would be their value at the time they were so cut, less the amount 'which he or his employes have added thereto by their labor; In other words, the value as they stood hi the tree, which the testimony tends to show was about three cents per tie.”
It is not contended that the proposition of law'here announced is incorrect, but that there was no evidence on which to submit the issue as to whether the defendant was an intentional or mistaken trespasser. It is urged by counsel for plaintiff that defendant had been informed not only tliat the land from which the ties were cut was unsurveyed public land, but bad been notified on July 22d to stop work thereon for that reason. This is true; but it is also true that defendant on July 28th received a dispatch from the commissioner of the general land office which, according to his uncontradicted testimony, he construed to give him the right to proceed with the cutting of ties on terms referred to in the dispatch. He testifies that, relying on that dispatch, he proceeded in a limited way to cut ties, believing in good faith that be bad been accorded that privilege, until he was advised early in August by his attorney to the contrary, and that be immediately thereafter gave orders to suspend all work. Evidence of this kind is undoubtedly sufficient to go to the jury on an issue who (her defendant was a willful trespasser or a mistaken or unintentional trespas&er in cutting ties after August fid. The charge of the court, being correct in law (Bolles Wooden-Ware Co. v. U. S., 106 U. S. 432, 1 Sup. Ct. 398, 27 L. Ed. 230; Golden Reward Min. Co. v. Buxton Min. Co. [C. C.] 79 Fed. 868), was warranted by the proof, and no error was thereby commi tl ed.
The next assignment of error relates to that portion of the charge which tells the jury that, if any of the ties cut after August 3d were cut without the knowledge or consent of the defendant, he would not as to such ties be a willful trespasser. This is undoubtedly correct: in law, and the criticism to the effect: that there was no evidence on which to predicate it is, in our opinion, ill founded.
' This concludes a consideration of all the assignments of error which were seriously pressed upon our attention in argument or brief, and, having- examined the entire record and believing that the result reached was substantially right, the judgment is affirmed.
