International Paper Co. v. Purdy

Kellogg, J. : The question for review is whether a judgment in a former action-by the same -plaintiff against the same defendant prevents a recovery in this action. Upon the trial of the former action the court directed a verdict in favor -of the defendant,' and judgment was entered thereon dismissing the plaintiff’s complaint, with costs.The complaint in that action alleged that the plaintiff owned lot 230 and that the defendant wrongfully, unlawfully and without right or authority, entered thereon, and cut and carried away and caused to be cut and removed therefrom and converted to his own use and benefit, timber, logs and wood; that at the time of such cutting and conversion by the defendant, the timber, logs and wood so cut were of the value of. $1,962.75 standing,, and on account of such wrongful acts of the defendant committing waste upon the plaintiff’s land, lie became liable to pay therefor the amount of its actual damage, such actual damage being $1,962.75, and demanded judgment for three times that amount, with costs. The pleader evidently sought to recover treble damages under sections 1667 and 1668 of the Code of Civil Procedure, under which sections, how ever, if the acts are casual or involuntary, or. the- defendant believed the land his. own, single damages only may be awarded. The amount of damages claimed was based solely upon the value of the [191] timber, logs and wood cut. The answer was a general denial, and the allegation that the timber, logs arid wood were cut upon the defendant’s land, and that if any were cut upon the plaintiff’s-land it was by mistake and a misunderstanding as to where the true line between the plaintiff and the defendant actually was. The complaint in this action alleges that the plaintiff is the owner of lot 230; that the defendant, without the plaintiff’s knowledge or consent, caused to be taken therefrom timber and wood belonging to the plaintiff, which was wrongfully cut therefrom. It further alleges that some of the timber and wood had been delivered by the defendant to the plaintiff under a contract, the plaintiff not knowing the same had been taken from its land; and further alleges that at the same,time said wood was cut and delivered to plaintiff by a contractor in the employ of the defendant, other wood was likewise cut from the plaintiff’s land by said contractor in the employ of the defendant, and delivered to and received .at the defendant’s mill, and was used and disposed of by him. The plaintiff expressly waives the tort and- all causes of action therefor, and alleges that by reason of the facts stated the defendant is indebted to it either for money's had and received or upon an implied contract for the value of the wood, and demands judgment for the 'amdunt thereof. It is conceded that the lands, the cutting and reihoVál of timber, logs and wood mentioned in both complaints are the same. The summons, complaint, answer, clerk’s minutes and the judgment in the former action are in evidence, and from them alone and the proceedings in this action we are 'to determine whether that judgment prevents a recovery in this case. The witnesses sworn upon the first trial, as appears from the minutes of the clerk, were substantially all called upon this trial, and the witness- Gardner upon this trial, who hired and directed the men who did the cutting, was sworn upon both trials, and is evidently the person referred to in the complaint herein as a contractor in the employ of the defendan t. The evidence in this case does not tend to show that the defendant is not responsible for the acts of Gardner, and we can find nothing in the record in this case tending to show a cause of action in favor of the plaintiff which would not equally tend to show a cause of action in the other case. A familiar test in determining whether a judgment in one action [192] is a bar tó ór evidence in another action is whether substantially the-same evidence would establish the cause of action in each ease. In each, action it was'necessary, for the plaintiff to establish its title to the land, that the defendant wrongfully cut the timber therefrom, and the value of the timber. In the present action it was unnecessary to show- that the timber and wood wrongfully cut by the defendant were sold to the plaintiff, for if the timber was wrongfully cut. upon, the plaintiff’s land the defendant is’liable to the plaintiff therefor without regard to whom the defendant sold it. • In the first action .it was determined, that the plaintiff was not entitled to recover of the defendant the value of the timber and wood alleged to have been cut by. him upon the premises in question. While that adjudication stands there can be no recovery upon the facts, disclosed here for the same timber and wood in another - action by simply changing the form-of the complaint.' The first, action was in form a trespass upon real estate by cutting and' removing timber and-wood therefrom and converting the same to defendant’s use, in which the-only damages asked were based upon the value of the timber and wood cut and removed. This action and recovery are based upon the idea that the defendant wrohgfully trespassed .upon the plain tiff’s land, cut, removed and converted its -timber and wood and that the -tort is waived and recovery is sought only for the'value of the timber and wood. The evidence would warrant a recovery in either case. The judgment and order should, therefore, be reversed upon .tlie law and the facts, and a new trial granted, with costs to the appellant to abide the event.. AH. concurred, except Sewell, J., disse'nting in an opinion, in ' which Chester, J., concurred.