Jenkins v. Steanka

By the Court, Downer, J. This is an action to recover forty thousand feet of pine lumber, alleged in the complaint to be wrongfully detained by the defendant, and of the value of $400. The value is not denied by the answer. At the trial, the plaintiffs offered to prove the value less than $400 ; but the circuit court refused to permit the evidence to be given, holding that the pleadings fixed and were conclusive as to the [128] amount of the value. In this the court below erred. In actions of trover, trespass or replevin, before the code, it was not necessary for the defendant to deny the amount of the value or the allegation of damages, and in this respect the code has not altered the practice. They must be proved even though the defendant puts in no answer. Conness v. Main, 2 E. D. Smith, 314; McKenzie v. Farrell, 4 Bosworth, 202. Questions were put to different, witnesses by the plaintiffs during the progress of the trial, as to what the kind or quality of the lumber in dispute was. The court below refused to permit these questions to be answered. It seems to us the answers should have been received. They were competent as bearing on the question of the value of the lumber; also for another purpose. Testimony was given tending to prove that some part of the lumber in dispute was manufactured by one Wright in his mill, at Eremont, out of logs belonging to the plaintiffs and cut on streams above Eremont, and that there was a great difference in the quality of lumber sawed out of logs cut at or near Eremont and that cut out of the plaintiffs’ logs, the latter being much superior in quality to the former. The defendants’ witnesses, or some of them, testified that this lumber was made out of logs cut at Eremont. After this testimony was in, the plaintiffs renewed their inquiry as to the quality of the lumber in dispute, and the court again ruled the evidence inadmissible. It seems to us that it was clearly admissible as tending to prove whether the lumber in dispute was manufactured out of the plaintiffs’ or Wright’s logs. The circuit court also erred in instructing the jury that “ if they found for the plaintiffs, they cou!d only recover the amount of lumber which they have proved to have been wrongfully taken by Wright, although it may have been commingled with the lumber of Wright wrongfully.” The law, we think, is that if Wright wilfully or indiscriminately intermixed the lumber sawed from the logs of the plaintiffs with his own lumber, so that it could not be distinguished, and the [129] lumber so mixed was of different qualities or value, then the plaintiffs would be entitled to hold the whole. Willard v. Rice, 11 Met., 493; 2 Kent’s Com. (3d ed.), 364; Ryder v. Hathaway, 21 Pick., 298. We do not deem it necessary to notice other rulings assign, ed for error of the court below excluding testimony, as the same questions may not arise upon a new trial. Judgment of the court below reversed, and a new trial ordered.'