Granade v. United States Lumber & Cotton Co.

The trial was had on two counts, one for trespass upon lands and the other for conversion of pine logs cut therefrom.

The pleas were the general issue and payment.

Plaintiff's title deed shown was from Fairford Lumber Company to United States Lumber Cotton Company of date of February 26, 1910, and duly recorded.

Mr. Wiggins, secretary of the grantee corporation, testified that his company took possession of the lands; that they worked it for turpentine, paid the taxes thereon, and had continuous possession from the date of the deed until the suit; that the defendant admitted he had caused the timber to be cut, under a contract or agreement with Mr. Courtney, trustee, attorney and agent for the plaintiff; that he had sold lumber interests to E. L. Jordan and Brownlee Lumber Company under a cutting contract.

The witness further testified on cross-examination that Mr. Courtney had acted as trustee for receipts and disbursements from its turpentine operations for a period of time, could not say who appointed or constituted him such trustee for the United States Lumber Cotton Company; that he so acted in the fall of 1924 and up to early 1925; that he (witness) new nothing about how plaintiff got possession of this property "except from records and seeing them in possession"; that he did not know whether plaintiff or defendant turpentined the lands; and admitted that Young worked for plaintiff prior to the cutting. The witness was not permitted, over plaintiff's objection, to answer whether plaintiff company was or was not in bankruptcy, or "When was the company put in bankruptcy?" or whether or not his company "made a composition settlement with its creditors," and when the president of the company was in England and when he returned. Likewise, the letter from Granade to Courtney of date of February 9, 1924, accepting the former's contract or sale of timber interest on these lands, was excluded on plaintiff's motion. To the foregoing and several rulings, the defendant excepted. This evidence was material and competent, as tending to show whether there was a willful trespass in the cutting in question, or whether it was done by and under contract or consent of the plaintiff's trustee and agent, who had authority over these lands at the time of the cutting.

The witness Jordan testified that plaintiff had been in possession of the lands since 1910, and the timber was cut therefrom in the spring of 1925 by B. L. Onderdonk. And over defendant's objection and exception was asked: "Did or not Mr. Onderdonk make any statement to you with reference to the authority he was cutting under and who authorized him to cut it?" and answered: "The best I recall he said he bought it from Mr. Granade, the defendant. This conversation was out there in the woods." This was merely hearsay, as to its binding effect upon defendant-appellant. 1 Brick. Digest, p. 843, § 560; Dothard v. Denson, 72 Ala. 541, 544; Doe ex dem. Hooper v. Clayton et al., 81 Ala. 391, 2 So. 24; Daffron v. Crump,69 Ala. 77; Shelton v. Stapler, 219 Ala. 15, 121 So. 34; Sovereign Camp, W. O. W. v. Hoomes, 219 Ala. 560, 564, 122 So. 686. The trial court was in error in allowing the witness to answer as to the source of title.

An important inquiry is: Was the value of the timber cut from the original tract and from the lands in question? The witness E. L. Jordan, having testified as to its market value as cut from the land by Onderdonk, was cross-examined by defendant as to the location and value of the timber cut by some party from adjacent lands on the same original tract. Witness further stated that Onderdonk was cutting near the line of one of the 40's when "he said he had bought the timber from Granade, the defendant. He did not tell me that he had a deed for the timber. * * * Might have mentioned Bud Wilkins being with him, but I knew they were both in connection. I did not see Wilkins there"; that "This timber was worth $8.00 per M"; that witness had "just bought some of the same timber at $4.50 and $5.00 per M — straight through"; that he thought the "timber on the NE-1/4 of NE-1/4 of Section 23 was the best timber on that Section"; that the "lands in Section 14 were about like the rest of the swamps." Whereupon the defendant asked the witness: "That original contract which the company (plaintiff) made was for $3.25 per M. was it not?" Plaintiff's objection was sustained, and exception reserved by defendant to this cross-examination; it was competent to test the recollection, bias, or judgment of the witness. Such collateral inquiry on cross-examination was proper, in the absence of the contract, and it was error to deny that right.

And for like reason the question to the witness, "Your feeling towards the plaintiff is absolutely friendly, is it not?" was relevant and material. The witness was then permitted to testify that his "feeling towards defendant is good"; that he had "not caused another suit to be filed against defendant"; that "the way (he) I understand the case, I am the main witness against this defendant in another case." The question of his relation and feeling as to plaintiff that was denied was relevant and was pursuant to a proper cross-examination in testing bias or prejudice of the witness as to the respective parties.

It has been shown by the witness Wiggins that the timber in question had been sold to E. L. Jordan and Brownlee Lumber Company on a cutting contract. The record recites:

"Question: As to the lands described in this suit, the two '40's' in 14, and two '40's' in 23, had the Washington Lumber Turpentine Co. submitted to the U.S. Lumber and Cotton Company any timber estimate as is called for by this contract, or had they paid the U.S. Lumber and Cotton Company, the agreed price for this timber? Defendant objected to the question as irrelevant, immaterial and incompetent; as calling for an opinion or conclusion of the witness; as seeming to vary the terms of the instrument (it must stand as it is). The court overruled the objection, whereupon the defendant then and there duly excepted.

"The witness answered — 'No sir, none of that had been released or paid for.' Counsel for defendant moved the court to exclude the answer as irrelevant, immaterial and incompetent, calling for the opinion or conclusion of the witness; as attempting to vary the terms of the instrument; and because it would not affect the title or rights of anyone in this case.

"The court denied the motion, whereupon defendant then and there duly excepted."

The evidence had shown that the United States Lumber Cotton Company had sold and conveyed the timber in question to the Washington Lumber Turpentine Company, and about the time of the conclusion of the cutting entered into a second conveyance, affirming the previous sale and making slight changes in its terms. These contracts cannot be materially altered or impeached in these proceedings. They require no parol testimony to explain them; there being no latent ambiguities. The words employed in the conveyances show that the title had passed from the United States Lumber Cotton Company to the Washington Lumber Turpentine Company, at the time of the alleged trespass or conversion by defendant, subject to the terms of that written contract of sale. It is true that the clause attempted to be explained by the witness were placed therein for the protection of the United States Lumber Cotton Company, as to estimates and subsequent installment payments of the purchase price for the timber to be cut and that which had been sold and conveyed. That is to say, the evidence tended to show that the sale had been effected, the conveyance delivered and recorded, the Washington Lumber Turpentine Company had been put in possession of these timber lands, and the property was being looked after by one Young, an employee of the last purchasing corporation. This evidence afforded a reasonable inference of fact that, if there was any right of action, it was not against the defendant — such as an accounting with the party who was under the duty to care and protect the timber until finally paid for and released by the original grantor. And the foregoing inquiry, permitted against defendant's objection, as to releasing the lands by the United States Lumber Cotton Company to the Washington Lumber Turpentine Company, and whether the purchase price was paid, was immaterial and harmful in the suit against the defendant by the United States Lumber Cotton Company for trespass and conversion.

The witness Blackwell was shown to be sufficiently qualified as to permit him to "refresh his memory" from the cruise notes, and then testify to the quantity of timber which he found on the lands in dispute. It was shown that he cruised these lands with others; the "field sheet" was proved correct by those who made that cruise and reduced the same to writing. It was shown that the cruising, as it appears on the "field sheet," was made up or entered and sent in to the Mobile office by Blackwell. He was thus permitted to testify that he had a memorandum which he made at the time and which he knew to be accurate, and was therefore competent as an expert to state the amount of pine that had been cut.

Defendant attempted to show by one Young the amount of pine timber cut from the lands in question. It was shown that Young, months after the timber had been cut and removed, with others, counted the stumps, measured the distance from the butt of the stump to the top where it had been sawn, made the usual allowances and inferences of fact, and calculated the amount of timber in each tree from these measurements. He testified that his calculations were based upon the estimate of a given number of logs from each tree; the estimating of the size of the small end of each log, its distance, etc., from the butt. Such is the method employed by an expert cruiser, and he was shown to have been an expert, and, as such, qualified to give such testimony or opinion evidence; and was properly permitted to give the number of feet of pine timber cut from the lands cruised by himself and Loper.

The defendant should have been permitted to ask witness Young the question: "Was it the Washington Lumber Turpentine Company you were working for when you had possession of this property?" The court sustained the objection, and due exception was reserved. It located the time of the cruise, when Young had possession of the timber as agent of the Washington Lumber Turpentine Company, and afforded an inference as to the question of interest, bias, or agency of the witness at the time of the trespass and while making the cruise. That is to say, that it had a tendency to support the testimony of the secretary of the United States Lumber Cotton Company to the effect that Young was not in its employ in doing the acts of possession and protection of timber as related to the alleged trespass and conversion. Moreover, this question was in corroboration of Onderdonk's evidence that what timber he cut on these lands was by mistake, and not as a purchaser, and that he took up the matter with Washington Lumber Turpentine Company, represented by Young, to settle the unintentional and mistaken trespass in the cutting. Booker v. Jones' Adm'x,55 Ala. 266, 275; Zimmerman Mfg. Co. v. Dunn, 163 Ala. 272, 274,50 So. 906.

It is settled that in an action for trover there must be a concurrence of the right of property, general or special, and of possession, or the immediate right of possession in the plaintiff at the time of the conversion to maintain an action therefor. Zimmerman Mfg. Co. v. Dunn, supra; Booker v. Jones' Adm'x, supra.

The question sought to be propounded and answered by Young shed light upon the fact of possession, or the immediate right of possession of the timber on the lands by the Washington Lumber Turpentine Company, rather than by the United States Lumber Cotton Company, who is the plaintiff seeking damages for the trespass and conversion. Citizens' Bank v. Pearson,217 Ala. 391, 116 So. 350.

There was other evidence — as the conveyances in evidence — affording an inference that the timber when cut did not belong to plaintiff, having been theretofore sold and conveyed and possession given to the Washington Lumber Turpentine Company, who was at the time in the actual possession of the lands — thus Young's agency was relevant.

The foregoing inquiries were material upon the question of conversion or trespass vel non, and whether or not the conversion was inadvertent. The rule for the measure of damages in such action, and where conversion was intentional or inadvertent, or by an innocent vendee, is indicated in White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199, 54 Am. St. Rep. 159. In the latter class of cases as trover, the value of the thing severed is its market value immediately after its severance, when it has become a chattel. Gray v. Alabama Fuel Iron Co., 216 Ala. 416, 420 (9), 113 So. 35; Gowan v. Wisconsin-Alabama Lumber Co., 215 Ala. 231, 110 So. 31; Davis v. Erwin, 214 Ala. 341, 107 So. 903. In the matter of damages for injury to the land by destruction of the trees and by trespass, the damage is not measured by the value of the timber or property severed, but by the injury to the land by reason of its severance — the difference between the value of the land immediately before and after the trespass. White v. Yawkey, supra; Foust v. Kinney, 202 Ala. 392, 80 So. 474, and authorities; Fuller v. Fair, 202 Ala. 430, 80 So. 814, and authorities; Warrior Coal Coke Co. v. Mabel Mining Co.,112 Ala. 624, 20 So. 918; Brinkmeyer v. Bethea, 139 Ala. 376,35 So. 996; Riggin v. Hogg, 203 Ala. 243, 82 So. 341.

The judgment of the circuit court is reversed, and the cause remanded for the foregoing rulings on evidence.

Reversed and remanded.

ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.

On Rehearing.