Austill v. Hieronymus Bros. , 117 Ala. 620 ( 1897 )

COLEMAN, J.

The suit was-in detinue by the appellees, to-recover “one hundred and fifty-three peeled pine piling, fifty feet long each, gotten out by James W. Baird for the plaintiffs.” There is no question of the fact that James W. Baird, for a consideration,’agreed with the plaintiffs to get for them the pilings. It is equally clear’that Baird contracted with the defendant to get the piling from land then in his possession, and for some purposes, subject to his control. The plaintiffs knew that Baird was to get-the piling from these lands, by agreement with the defendant, and defendant knew that Baird was to get them for plaintiffs. The agreements, however, between the plaintiffs and Baird, and between the defendant, were entirely independent of each other. Whatever of title Baird acquired to the piling, he acquired by virtue of his agreement with the defendant, Austill. The statute (Acts of 1894-95, pp. 250-251; Code of 1896, §§ 2780-2783) gives the owner of land from which timber is gotten, alien upon the timber, commonly called stumpage, ahd provides for the enforcement of the lien. There were no proceedings taken' to enforce the lien' given by statute,' and according to our view of the evidence, this statute exerts very little, if any influence in the case.' .

There was evidence tending to show, that by the terms of the agreement between the defendant, Austill, and Baird, the piling was’not to be removed from the land, nor was Austill to part with his possession of 'the timber, until he had been paid twenty cents each for the piling as stumpage, and for all advances made by him to Baird, to enable him to get the piling ready for delivery. Baird got out the piling in controversy, liaiiled it to the river, convenient for rafting to the mills of defendant. The plaintiffs’ contention is, that they had the timber inspected, and that Baird made a delivery of it to them, or to an agent for them, before the timber was put in raft, and that upon a tender of the stumpage, their title and ownership became perfect. Conceding the fact as to a delivery by Baird to be as claimed, and, also, the tender of stumpage, we can not see how these acts.would invest the plaintiffs with a title and right which Baird himself could not have acquired and held if his contract of purchase of the timber was upon the terms and conditions, that the timber was not to be removed from the land, and Austill was not to part with possession of the timber, until he was paid both stump-age and advances. As stated, the plaintiffs knew that Baird was to purchase the timber from Austill, and there was evidence tending to show that defendant claimed both stumpage and advances under his agreement sale. There may be evidence tending to show that defendant Austill waived his right for advances, but there is evidence to the contrary.

We are of opinion that the first charge given at the request of the plaintiffs was faulty in two respects. We can not see how the mere knowledge on the part of the defendant of a delivery of the poles by Baird would defeat his legal right to their .possession. Knowledge of delivery without objection from which assent might be implied, might be sufficient, but mere knowledge is not the equivalent of assent. The charge, moreover, ignores the testimony tending to show that by the agreement advances were to be paid as well as stumpage.

The first charge requested by the defendant was properly refused. The charge does not predicate the conclusion upon the finding by the jury, that by the agreement between defendant and Baird, the timber was to remain on the land and in the possession of the vendor until the advances had been paid for.

We are of opinion that the lien given by the statute (Acts of 1894-95, supra) extends to the entire lot of timber for the whole debt due for stumpage gotten out under the contract; and so long as any amount due for stumpage remains unpaid, the lien may be enforced upon the entire remaining lot, unless the parties by agreement provide otherwise.

Under the principles of law declared by us, the fifth charge requested by defendant should have been given.

In its oral charge the court instructed the jury, that “if the contract was made with Baird, and Baird, with the hnowledge or consent of Austill, turned these logs over to Austin as the agent,” etc. This charge is subject to the same criticism made upon the first charge given by the court. Mere “knowledge” is not the equivalent of assent.

Reversed and remanded.