Short v. Messenger

Opinion, Mr. Chief Justice Paxsoh: While the question is not entirely free from doubt, we are not prepared to say that an action on the case will not lie in this instance. It is clear that both the plaintiff and the defendant had an interest in the timber which is the subject of this controversy. It is true, the interest and rights of the plaintiff below were paramount to those of the defendant, yet the fact remains that each had an interest; and I do not see how an action of trespass would lie by one against the other. The objection is purely technical; and, while this suit was commenced prior to the procedure act of 1887, we must consideran objection to the form of action in the light of that legislation. Aside from this, an appellate court is slow to reverse for an error in the form of action, after a trial upon the merits. The defendant’s seventh point called upon the court to instruct the jury: “ That if the jury believe that the plaintiff abandoned the job, the defendant was justified in taking off the timber and would not be liable in damages therefor.” The court refused this point. I do not understand it to have been refused because there was no evidence to sustain it. The learned judge does not say so, while, in his answer to the defendant’s ninth point, he expressly puts his refusal to affirm upon the ground that there was no evidence to sustain the point. The seventh point was well put, as a matter of law, and if there was no evidence that the plaintiff had abandoned the job, the refusal of the point might well have been put upon that ground. It is no slight matter for us to go through 193 pages of testimony to see if there was evidence of abandonment by the plaintiff, and if the learned judge below, who must have known how this matter stood, does not say so, we have a right [642] to presume the point was refused because it was not good as a question of law. Aside from this, there was some evidence from which the jury might infer an abandonment. If there was error in that portion of the charge in which the learned judge said, “ The timber consisted principally of hemlock, in the proportion of one fourth pine and three fourths hemlock,” it will doubtless be corrected upon another trial. We think it was error to reject the offer of evidence referred to in the last specification. If, as the defendant offered to prove, he “ gave notice to George D. Messenger, Sr., who was the agent of the plaintiff, and who, under the evidence in tins case, did all the business in relation to that timber matter, and who was there upon the premises at the time carrying on the business, to take off this timber at once, or proceed to take it off as fast as possible; that the timber was spoiling, and that if he did not do it that he, Short, the defendant, would be compelled to take it off himself — all there was fit for use,” it would be a good defence; It is true, the offer was objected to by the plaintiff because he controverted the facts of which the point was predicated. Had the facts assumed in the point depended upon the defendant’s evidence, the objection would have been well taken. Such is not the case, however. It appears from the testimony of the plaintiff himself that George D. Messenger, Sr., was the agent upon the ground, and had the whole charge of this timber business. The plaintiff was seldom on the ground himself, and in his absence his father, George D. Messenger, Sr., represented him. This fully appears by the following question and answer: “ Q. Now then, was there any limit to his power to represent you in your business up there about that business, as to cutting timber, or to see whether it was gotten out? A. I don’t know that there was in that respect.” If the notice referred to was given upon the premises, to the plaintiff’s managing agent, we are unable to see why such fact should not have gone to the jury. The notice was as to a matter directly relating to the business. In such case, a notice to the agent would have been notice to his principal. The defendant was not bound to lie by and see the timber rot upon the ground. The taking of it off had already been greatly delayed. It had been going on through 1881, 1882 and part of 1883. It is a matter known to every one that timber, and especially hemlock [643] timber, soon decays and becomes unmerchantable when left to lie upon the ground. And it is a question, whether allowing timber to lie and rot, if the fact be so, would not be some evidence of an abandonment of the contract, as set forth in the defendant’s seventh point. We notice no error in the remaining assignments. Judgment reversed and a venire facias de novo awarded.