Waverly Timber & Iron Co. v. St. Louis Cooperage Co.
20 S.W. 566
Mo.
1892
Check Treatment
Gantt, P. J.

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 аnd 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 сonversion during the year 1887 to plaintiff’s damage, and the third, a like conversion in June and July, 1888, and throughout 1888, until Sеptember 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 *388river,” above, the following words: “And from the land lying south of the Turkey creеk and what is known as Montgomery grant just south of land of W. Duffel’s heirs,” in order to conform the pleadings with the рroof in the depositions on file. The motion to amend was overruled by the court and excеptions taken by plaintiff.

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 testifiеd in a deposition filed October 13, 1890, that he cut one hundred and two white oak trees on this land south оf 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 donе 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 sрecific. The deposition was on file, and the witness had been cross-examined by defendant. It сould 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 *389amendment before going- into the evidence. The trial court imposed no terms, but peremptorily refused to permit it at all. To refuse this amendment, and then nonsuit the plaintiff because the evidence showed the timber was cut from the tract south of the creеk, does not accord with the liberal spirit of our statute of amendments.' The amendment did not change the cause of action. The suit was for the conversion of the timber, ‍​​‌​​​​​‌‌​​‌‌‌​​​​‌‌​​‌​‌‌​​​‌​​​‌‌‌​​‌​‌​‌​​​‌‍and the purpose of the amendment was simply to make specific the general averment that the timber was cut from certain lapds, by referring to the particular portion thereof. The petition was suffiсient as it was, without the amendment, but it should have been allowed, especially as the court hеld that without it plaintiff could not recover for the timber cut from that part of the land described in thе proposed amendment.

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. Duffеl’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 оbjection. 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 rejeсted. 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 *390hearsay in the excluded deposition of Mr. Joseph Frank. It will he much easier for counsel to retake his deposition or call him as ‍​​‌​​​​​‌‌​​‌‌‌​​​​‌‌​​‌​‌‌​​​‌​​​‌‌‌​​‌​‌​‌​​​‌‍a witness, and it ought not to he difficult to explain to a witness of any intelligеnce what is evidence and what is hearsay.

For the ¿rrors noted, the judgment is reversed and cause remanded for new trial.

All concur.