112 Mo. 383 | Mo. | 1892
This is an action for damages, alleged to have been caused by the conversion of certain timber, staves and headings cut and made without consent of plaintiff from certain lands owned by it “lying and situate in civil districts 1 and 11 in Humphreys county, in the state of Tennessee, and more particularly from that portion of the plaintiff’s said tract of land located north of Turkey creek, south of White Oak creek,, west of the west boundary line of what is known as the John Brown tract, and east of what is known as the Eiver road, which road, at this place, runs parallel with and east of the Tennessee river in said county of Humphreys and state of Tennessee.”
The petition is in three counts; the first alleges a conversion between October 15', 1885, and January 1, 1887, to the amount of $1,500; the second, a like conversion during the year 1887 to plaintiff’s damage, and the third, a like conversion in June and July, 1888, and throughout 1888, until September 14, 1889 (when this action was commenced) amounting to $2,800 in damages.
The answer was a general denial.
The cause was tried November 18, 1890.
• On the calling of the cause for trial, November 18, 1890, plaintiff asked leave of court to amend its petition by inserting after the words “east of Tennessee
Plaintiff offered in evidence and read two deeds; one from Joseph Frank and wife and August Richards and wife to the Waverly Timber & Iron Company, of date February 2,1888, conveying by metes and bounds seventeen thousand, three hundred and fifty-three and one-half acres in Humphreys county, Tennessee, and one from T. U. Harris and wife to Frank and Richards, both duly recorded. It is admitted that the above deeds cover and embrace the land in the petition.
Among other witnesses J. A. Summers testified in a deposition filed October 13, 1890, that he cut one hundred and two white oak trees on this land south of Turktey creek. He cut this timber for the defendant, and shipped it to defendant at St. Louis. Mrs. Duffel claimed the timber and sold it to him. He showed McCullom the trees he cut. McCullom testified these trees were cut on plaintiff’s land. The evidence tended to show this was the larger part of the damage done plaintiff.
Plaintiff complains that the court refused to permit it to amend its petition ' as requested. We think the court erred in not permitting this amendment. Its' effect was to make the petition more specific. The deposition was on file, and the witness had been cross-examined by defendant. It could not have wrought a very great surprise to defendant; but, if it had, that was a matter for the court after permitting the amendment. Gilmore v. Dawson, 64 Mo. 311; Carr v. Moss, 87 Mo. 447. It appears that plaintiff asked leave to make this
II. With this averment in the petition there was sufficient evidence to submit the case to the jury. -
III. If the jury shall find this timber was cut from plaintiff’s land, and was received by defendant of its agents, and appropriated, it will be no defense that defendant’s agents thought they were cutting on Mrs. Duffel’s land. The element of intentional wrongdoing is not necessary to the maintenance of this action.
IV. Osman’s agency could not be shown by his own declarations. Much of the testimony is open to this objection. Mitchum v. Dunlap, 98 Mo. 418; Anderson v. Volmer, 83 Mo. 406. And for the same reason the check on the defendant by Osman, in the absence of evidence that it had been «accepted by the defendant, was properly rejected. This was only another way of showing his agency by his own admissions.
Y. We do not feel called upon to search for the few grains of competent evidence in the vast amount of
For the ¿rrors noted, the judgment is reversed and cause remanded for new trial.
