13 Nev. 44 | Nev. | 1878
By the Court,
This is an action of trover, brought against the Carson Eiver wood company, a corporation, to recover the value of one thousand eight hundred and sixty-two cords of merchantable pine cord-wood, which plaintiff alleges was wrongfully converted by said defendant on the eleventh day of September, A. D. 1876, at Empire City, in Ormsby county, Nevada.
D. R. Hawkins subsequently intervened and filed an answer, as a defendant in said cause, denying plaintiff’s ownership of said wood, and asserting ownership and possession in himself.
The cause was tried before a jury, and resulted in a judgment against the defendants for thirteen thousand and thirty-four dollars, and costs.
The defendants moved the court for a new trial, which was refused. Erom this judgment and order defendants appeal. From the record it appears that one Bol Simpson, as a party of the first part, on the fifteenth day of May, a. d. 1875, entered into a written contract with one Sam Dixon, as a party of the second part, the terms of which are as follows: “The party of the second part agrees to cut, split, bank, and run into the main stream of what is known as "Wolf creek, in Alpine county, California,. three thousand cords of good, merchantable wood; said wood to be cut on what is known as the Simpson & Ward ranch, on said Wolf creek; * * * to pile the wood four feet and two inches high, * * * and have the same completed on or before the first day of June, A. D. 1876. The party of the first part agrees to pay the party of the second part three dollars and fifty cents per cord for each and every cord delivered as aforesaid in payment, as follows: To furnish the said second party with tools, provisions, and team necessary for use in cutting said wood; also with what money the party of the
On the first day of December, A. D. 1875, a similar contract was made between Sol Simpson and O. W. Ward, parties of the first part, and Louis Bertrand, of the second part, for cutting, splitting, banking and fluming into Wolf creek one thousand cords of wood, more or less, the contract to be completed on or before the first day of May, A. D. 1876; the price per cord to be three dollars and twenty-five cents. In this contract the parties of the first part “further agree to pay the party of the second part, fifty cents per cord for fluming two hundred cords of wood left out of wood cut by St. John and Mayo, and owned by the said first parties.” * * * “ The parties of the first part further agree to pay said second party for fluming the above mentioned two hundred cords of wood as soon as the work is completed, and to pay five hundred dollars on cutting after the wood is measured.”
Prior to, and at the time of the making of these contracts, Sol Simpson and the respondent Ward, claimed the land upon which the wood was cut, and upon the trial much testimony was offered tending to show that they had a good possessory title to the timber land known as the Simpson and Ward ranch, and that they had purchased the land known as the St. John ranch, from St. John, who claimed to have the possessory title thereto.
The contract made with Bertrand did not specify upon what land the wood was to be cut, but nearly all of it was cut on what is known as the St. John ranch. Of the wood in controversy in this suit, one thousand and seventy-nine cords were cut under the contract, by Dixon, on the Simpson and Ward ranch; two hundred and eleven cords belonged to Simpson and Ward under their purchase from St. John; the balance was cut, under the contract, by Bertrand.
On the thirtieth of March, A. D. 1876, upon settlement of
About three weeks after the assignments were made, Dixon and Bertrand applied to Stadtmuller & Co. for more supplies. Stadtmuller informed them that he had ascertained that the matters were not as they had been represented, and for that reason he would not have anything more to do with the business. He refused to make any further advances, and said to Dixon and Bertrand: “The wood is your wood to-day; it ain’t my wood, it is your wood, and I can’t go any further. I want you to keep the wood, and I will buy .it from you when it is put into Wolf creek or in the main river.” After this conversation, Dixon applied to Ward for supplies, and was told that he had better go up the river and wait. Ward said: “I don’t want to give you any money; if I do, I will have to raise it on my house;” and added: “You had better go and see Stadtmuller.” No supplies were furnished after this conversation; no more wood was cut, and no attempt was made by Dixon or Bertrand to get the wood into Wolf creek, or into the Carson river, except by repeated efforts to obtain further supplies, which, they claim, was necessary for them to have to enable them to comply with their contracts. Failing to get any further supplies, Dixon, after consulting with S. W. Griffith, county judge of Alpine county, on the fourth of May, 1876, sold and delivered the wood then on the Simpson & Ward ranch, to L. M. Buel, county clerk of Alpine county. Buel afterwards sold the same to D. R. Hawkins. Bertrand, at the same time, sold and delivered tbe wood on the St. John ranch, to S. W. Griffith. Griffith afterwards sold it to A. M. White, and White, at Griffith’s suggestion, afterwards conveyed the same to Hawkins. A portion of the wood cut under the Dixon contract was removed from the Ward & Simpson ranch by Buel, before he sold the wood to Hawkins, and a portion of it was removed by Hawkins after he purchased it from Buel.
1. It-is first claimed by appellants that the court erred in denying certain instructions, asked by them, to the effect that the boundaries of timber lands in the United States must be plainly and distinctly marked before a possessory title thereto can be acquired, and that no such title can be acquired under the possessory laws of California.
In determining this question, it must be remembered that the title to the land is not in controversy in this action. The question whether plaintiff had the possessory title is, in our opinion, immaterial. The fact is undisputed that Simpson & Ward claimed to have the possessory title; that Dixon and Bertrand entered into the contracts agreeing to cut the wood for them, and that the wood was cut upon said lands under these contracts. We are of opinion that appellants could not defeat a recovery of the wood, by plaintiff, by showing the title to the land to be in the government of the United States, unless they in some manner connected themselves with the government title. (Weymouth v. Chicago and Northwestern Railway Company, 17 Wis. 550; Hungerford v. Redford, 29 Wis. 346; King v. Orser, 4 Duer, 431; Carter v. Bennet, 4 Fla. 355; Cook v. Patterson, 35 Ala. 102.)
2. Did the declaration of Stadtmuller, as argued by appellant’s counsel, vest the title to the wood in controversy, in Dixon and Bertrand ?
■ There is nothing in either of the contracts to the effect that if Simpson, in the one, or Simpson & Ward in the other, failed to comply with the terms of the contract, tho wood cut thereunder should belong to Dixon or Bertrand;
The declarations of Stadtmuller were not made to either Buel, Griffith or Hawkins, and they cannot claim that they were induced thereby to expend any money on the faith thereof. If they had applied to Stadtmuller to ascertain the facts in regard to the title to the wood, and Stadtmuller had informed them that he had no claim upon the wood, and that the title thereto was in .Dixon and Bertrand, then some of the numerous authorities cited by appellant’s counsel would have been applicable. But the proofs are that the declarations were made to Dixon and Bertraud, who knew all the facts just as well as Stadtmuller. They knew that the legal title was in Stadtmuller; that his remarks were made without consideration, and did not amount to either a gift or sale of the wood to them, and did not authorize them to sell or convey the same to any one. (Cummings v. Webster, 43 Me. 192; Lewis v. Castleman, 27 Tex. 408.)
3. The appellant Hawkins also claims the wood by virtue of certain tax titles.
Upon the trial, the court excluded the certificates of sale, and it was argued that this action of the court was erroneous. It appears from the recitals in the assessor’s certificate of sale of the wood on the Simpson & Ward ranch, that the assessor, on the twenty-sixth day of May, 187 6, duly listed and assessed to L. M. Buel, S. Dixon, F. D. Stadtmuller, S. Simpson and O. W. Ward, two thousand cords of wood, at two dollars and fifty cents per cord, and ten thousand feet of lumber, at fifteen dollars per thousand; that the assessor, on the said twenty-sixth day of May, advertised the property for sale, by posting written notices, signed by him, in three public places in Alpine county; that on the third day of June, 1876, the assessor offered at public auction “so much of said property as would be sufficient to raise said sum of money so due for said taxes;” that “D. E. Hawkins bid the smallest or least quantity of said personal property and pay said taxes and costs, to wit: one hundred and fifty-one dollars and ninety-two cents taxes and one dollar and fifty-one
Similar recitations appear in the certificate of sale from the assessor to S. W. Griffith, for eight hundred and fifty cords of wood and five thousand one hundred and eighty feet of lumber, on the St. John ranch, assessed to L. Bertrand, S. Simpson, O. W. Ward and F. Stadtmuller. The certificates were signed “A. M. Grover, assessor of Alpine county; Henry H. Merrill, deputy.”
Appellants offered testimony to prove that Grover was assessor, but failed to make any proof whatever that Merrill was his deputy, or that the signature to the certificate of sale was the signature of the officer making it. These facts were essential, in order to give validity to the certificates. (Blackwell on Tax Titles, 92, 217; Rockbold v. Barnes, 3 Rand, 473.)
In California, it has been held that the supreme court should take judicial notice of the fact as to who fills the various county offices within their jurisdiction, and of the genuineness of their signatures. (Wetherbee v. Dunn, 32 Cal. 106.) But our attention has not been called to any authority, and we apprehend none can be found that requires the courts of one state to take judicial notice of the various county officers of another state, or the genuineness of their signatures. This objection was of itself sufficient to justify the ruling of the court in excluding the certificates of sale. Other objections were made by respondent, which, in our opinion, were equally well founded. •
The law of California relating to the collection of taxes by the assessor on personal property, and authorizing a seizure • and sale, where the owner has no real estate, provides, among other things, that ‘ ‘ the sale must be at public auction, and of a sufficient amount of the property to pay the taxes, percentage and costs.” (2 Cal. Political Code, 3791.) “3792. The sale must be made after one week’s notice of
Appellants failed to prove that these provisions of law were complied with. The property was not sold at “public auction,” in the manner required by section 3791. There is no satisfactory proof that it was necessary to sell the entire quantity of wood in order to pay the taxes, and we are of opinion that the wood ought to have been offered for sale by the cord, and only so much sold as was sufficient to pay the taxes, percentage and costs. (Cooley on Taxation, 344; Blackwell on Tax Titles, 286-289, and authorities there cited.)
Appellants’ counsel, having attempted, but failed, to prove that the notices of sale were posted in three public places, as required by section 3792, contend that the certificates of sale were conclusive evidence of the facts therein recited. This position is wholly untenable.
There are no provisions in the law of California — at least none that were offered in evidence — which makes the bill of sale of personal property even prima facie evidence of the facts recited in it. The law does not specify — as it does in regard to certificates of sale given by the officer upon the sale of real property — what shall be stated in the bill of sale. Section 3786 relates exclusively to sales of real estate. It is not made applicable to sales of personal property made by the assessor. (See sec. 3822.)
The law does not require the assessor, in selling personal property, to give a certificate of sale, but simply provides that upon the payment of the purchase-money he must deliver the property, “with a bill of sale.”
It is evident that if the court had permitted the certificates of sale to be introduced in evidence, the jury would have been compelled, under proper instructions, to disregard them, because the testimony, in several particulars, failed to show the essential facts required by law to give them any validity.
4. This brings us to the most important question involved in this case, viz: did the court err in giving the fifth instruction asked by respondent’s counsel? It reads as follows: “If tho jury find from the evidence that the wood in controversy was put into tho wood-drive of the said defendant, the Carson river Avood company, at Alpine county, state of California, by some person or persons having the custody or possession thereof, not the owner or owners thereof, the possession of such Carson river wood company of said Avood was lawful until demand made by the owner or owners, and it Avas not until after demand Avas made on them by the owner or owners, and refusal to deliver it up, that any conversion took place, and an action for the recovery of the property, or for damages for its conversion, would lie by the owner; and the OAvner of the property is entitled to recover the value of the property converted at the time and place of such conversion.”
The wood, at the time of the demand upon, and refusal by, the Carson river Avood company, Avas out of the river and corded up at Empire city, in Ormsby county, in this state, and was then and there worth the sum of seven dollars per cord (the value found by the jury). The Carson river
During the progress of the trial the defendants, having in their original answers admitted the value of the wood at Empire city to be five dollars and seventy-five cents per cord, were, on motion, allowed to amend their answers by alleging that the value of the wood, on the respective ranches where it was cut, was two dollars per cord, and no more. The testimony as to its value at that point varies from two dollars to three dollars per cord.
The proofs show that Hawkins, and his predecessors in interest, took possession of the wood upon said ranches, and at their own expense caused it to be removed therefrom and flumed down Wolf creek into the Carson river, claiming it as their own. The expenses so incurred by them, added to the amounts paid for the purchase of the wood, exceeded six thousand dollars. This does not include the amount of one dollar and fifty cents per cord due the Carson river wood company for driving and trans
The taking of the wood by Hawkins and others, under the unauthorized sales, with the intent to convert it to their own use, amounted to a conversion, and the true owner of the wood could recover its value in an action of trover, without making any demand, notwithstanding the fact that they purchased the property in good faith, believing the title to be valid. (Whitman G. & S. M. Co. v. Tritle, 4 Nev. 494.)
The wood, as it was piled upon the ranches in Alpine county, belonged to the plaintiff and his predecessors in interest. It was there wrongfully converted by the defendant Hawkins and his predecessors in interest. That was the place where the plaintiff’s property Avas taken from him. After this conversion, the defendant HaAvkins and his grantor, Griffith (claiming the wood as their own), delivered it in the Carson river to the defendant, the Carson river Avood company, as their bailee. The Carson river wood company, as a bailee for HaAvkins and Griffith, transported the wood down the Carson river to Empire city, where the plaintiff made the demand for the wood. The plaintiff is entitled to recover full compensation for the value of the property taken; but he is not entitled to recover the value as increased by the labor and expenditure of money upon the part of the defendant Hawkins or any of his predecessors in interest. This would certainly be giving him complete indemnity for the loss he sustained, Avhich is the real object of the action of trover. (Boylan v. Huguet, 8 Nev. 358, as Avell as in replevin, where the property cannot be returned; Buckley v. Buckley, 12 Nev. 424, and authorities there cited.) There is nothing in this case, calling for any special or exemplary damages, and hence the true measure of damages which the plaintiff was entitled to recover, was the value of the wood at the time of the conversion, Avith legal interest from that date up to judgment.
' But “sufficient unto the day is the evil thereof,” and it will be time enough to decide such cases when they are presented. It is enough for us here to say that, in our judgment, there are no facts in this case that call for any modification of the rule.. The rule adopted, if properly applied, does give the plaintiff full compensation.
In the case cited from Wisconsin, the plaintiff had caused wood to be cut, and had piled it on the premises of the defendant, in the town of Farmington, in Jefferson county, with a view of selling it to the defendant. At that place the wood was ■worth about one dollar and fifty cents per cord. Before the contract was completed, the defendant, by mistake, carried the wood to Janesville, and there mingled it in such a manner that its identity was lost. The plaintiff then demanded it at Janesville, and the’defendant did not deliver it. Wood at that time was worth four dollars per cord in Janesville, and was afterwards worth five dollars. The plaintiff brought an action of trover to recover the value of the wood, and the question was whether the plaintiff should recover its value at Janesville, or only the value at Farmington, where it was first taken. Paine, J., on delivering the opinion of the court, after admitting that a wrong-doer cannot, by bestowing labor upon the property of another, which he has tortiously taken, divest the title of the original owner, and that the owner may retake it in whatever form it may be found, so long as its identity can be established, said: “But where the owner voluntarily waives the right to reclaim the property itself, and sues for the damages, the difficulty of separating the enhanced value from the original value, no longer exists. It is then entirely practicable to give the owner the entire
We are of opinion that the authorities cited by respondents’ counsel, Avhich hold that the measure of damages should include the enhanced value of the property, merely because the owner might, in an action of replevin, have recovered it in specie, are not supported by sound reason nor sustained by the weight of the decided cases; and hence they ought not to be folloAved by this court.
The judgment of the district court is reversed, and the cause remanded for a new trial, unless the respondent elects, within ten days after the filing of the remittitur herein in the district court, to have the judgment modified so as to include only the value of the one thousand eight hundred and sixty-tivo cords of Avood, at two dollars per cord, with legal interest on such value from the time of the conversion of the wood from the ranches in Alpine county, California (said judgment to be for gold coin of the United States), in Avhich event the judgment, as thus modified, will be affirmed. Appellants are entitled to recover their costs on appeal.
