Drummond v. Humphreys , 39 Me. 347 ( 1855 )

Rice, J.

— In the winter of 1846-7, the plaintiff, under a contract, cut and hauled timber for the defendants from township No. 5, range 1. In consequence of uncertainty as to the true location of the line, he extended his cutting beyond No. 5, and upon No. 4, of range 1. The timber thus cut on No. 4, was hauled by the plaintiff to the same landing and commingled with the timber which he hauled for the defendants from No. 5. All the timber thus cut and hauled from both townships, was driven by the defendants, and by them manufactured.

For the value of so much thereof as was cut on No. "4, the proprietor of that township, Mr. Gtoodridge, has recovered of the plaintiff in an action of trespass. This action is brought to recover of the defendants the value of that timber for which the plaintiff has thus paid.

It would have been competent for Gfoodridge to have pursued the timber cut upon his land, without authority, and to have reclaimed the same; or it was competent for him to treat it «.s having been converted by Drummond, and to proceed against him for its value. He elected the latter method in which to enforce his rights, the consequence of which was, to vest the title to the timber in Drummond, the plaintiff.

That this timber, which has thus been paid for by the plaintiff, has gone into the hands of the defendants, and by them been appropriated to their use, does not seem to be controverted.

The defendants have submitted to a default, to be taken off if, upon the evidence reported, the action cannot be maintained.

It is contended, that the plaintiff is not entitled to recover, because it is not proved, that the defendants have received the money for the timber. The evidence is clear, that it was manufactured by them, and we think the legitimate inference is, that they have converted it into money, and therefore, that the plaintiff may well recover on the money counts. But he may also recover on the money counts by proof that the defendants have received either money or money’s worth for the property taken. Randall v. Rich, 11 Mass. 494; Payson v. Whitcomb, 15 Pick. 212.

There surely is no reason, in equity and good conscience, why the plaintiff should not recover, and we think there is no technical rule of law which will defeat this action.

The default must stand.