Scottish Carolina Timber & Land Co. v. Brooks

MerkimoN, C. J. -after stating the case: It appears from the record sufficiently that the plaintiff did not sue for a tort or the conversion of the logs mentioned in the pleadings; he waived the tort, as he might do, and “sues to recover the proceeds of the sale of certain logs,” which the plaintiff alleged belonged to it, and which the defendant took, used and sold, getting the money therefor, etc. The purpose of this action is to recover that sum of money. The plaintiff having waived the tortious taking'of the logs, be might sue for and recover in the court of a Justice of the Peace such sum of money as the defendant realized and received for the same if that sum did not exceed two hundred dollars. The plaintiff might ratify the sale and demand the money which the defendant got for them. Bullinger v. Marshall, 70 N. C., 520; McDonald v. Cannon, 82 N. C., 245; Wall v. Williams, 91 N. C., 477; Edwards v. Cowper, 99 N. C., 421. The action must, therefore, be treated only as one'brought to recover the money, the proceeds of the logs which the defendant received. Although the evidence produced on the trial was conflicting and not very satisfactory, still there was evidence relevant and pertinent to go to. the jury to prove that the defendant got seventeen of the plaintiff’s logs, that he sawed part or all of them into boards; and to prove what quantity of lumber they made, and that the defendant got the money for them. *701 There were data in evidence from which the jury might with reasonable certainty have ascertained, what sum of money the defendant received for them. The evidence tended to prove that the defendant used the logs and got the value of them in cash. The mere fact that he sawed them into boards and received the value of them in the shape of lumber, could not destroy the fact that he got their value, as logs, in cash. As we have seen, there was evidence from which the jury might have ascertained that value. Hence, the Court erred in intimating the opinion that, in any view of the evidence, the plaintiff could not recover. There is error. The judgment of nonsuit must be set aside and the case disposed of according to law. To that end, let this opinion be certified to the Superior Court. Error.