Ouilette v. Davis

Cooper, J., delivered the opinion of the court. The question whether a claim may be interposed to property seized under the proceedings authorized by the act of March 11, 1884 (Laws, p. 84), is not presented on this appeal. The appellee cannot assign error at all, for the judgment of the court below was in his favor, and he seeks in this court to maintain it. The appellant cannot assign as error the ruling of the court below that such claim can be interposed, for it was at his instance and in his favor that the court so ruled. Upon the errors assigned, the judgment must be affirmed. The first assignment of error is to the action of the court in sustaining an objection to a question propounded to the witness, Leonard. The right of the claimants to the property seized, rested upon a purchase from Leonard, whose title depended upon the inquiry whether, before the levy of the plaintiff’s writ, an executed sale of the property had been made to him by the defendant, Miller. A written contract, signed by Miller and Leonard, had been introduced in evidence, by which Miller agreed to sell and deliver, and Leonard to buy, a quantity of oak, ash and cypress logs at an agreed price. The material portions of this contract were as follows : “ W. H. Miller agrees to cut, sell and deliver to the said Leonard, under splice, in the Coldwater river, five hundred thousand feet of cypress and one million feet of oak and ash logs. All timber to be cut 14 and 16-feet lengths, as much 16 feet as possible. All cypress and ash logs to be not less than 20 inches in diameter, top end; oak logs not less than 26 inches in diameter, top end. Timber to be [767] well rafted, either with spikes or pins, as said Miller may-elect; no ash, sassafras or gum traverse poles to be used; no traverse poles to be less than 4 inches, top end, and uniform lengths to be rafted together; cribs to be put from 40 to 60 feet square. For this timber, so cut, delivered and rafted, Leonard is to pay the said Miller seven and one-half dollars for the oak and ash. All timber to be first-class, merchantable timber, such as will be accepted by the scaler of the Ouillette-Curphy Lumber Co., of Vicksburg, Miss. Leonard is to have this timber scaled for Miller once a month; he is to furnish Miller, monthly, such supplies and feed as Miller may need to do the work with. When the cypress is cut and skidded, Leonard is to pay Miller two dollars per thousand on it (and thereupon the title and possession shall pass to Leonard). When it is rafted he is to pay one dollar more per thousand on it. The oak and ash to be scaled on the hank of the river monthly, and, when so scaléd, Leonard is to pay Miller four dollars per thousand on it (and thereupon the title and possession shall pass to Leonard). When it is rafted, as above described, he is to pay Miller one dollar more per thousand on it.” Leonard was introduced as a witness for the claimants, and testified that the contract as above set forth was the one signed by himself and Miller. He was then asked if it had been altered since it was signed, and replied that the portion included in parentheses had been interlined a few days before the trial, and subsequent to the levy of the writ of seizure. Counsel for claimants then asked him why such interlineation was made, to which the plaintiffs objected, and the court sustained the objection. This ruling is the ground of the first error assigned. The record discloses the fact that, though the court sustained the objection to the above question, the witness, on cross-examination by counsel for plaintiffs, and upon re-examination by counsel for claimants, fully explained the circumstances under which, and the purposes for which, the interlineation was made. It also appears that Miller, the [768] other contracting party, was examined as a witness for the claimants, and he too was fully interrogated in reference to the interlineations. It would therefore be but an error in form, even if the question should have been permitted to be asked and answered, for the parties, at a subsequent stage of the examination, got the full benefit of the explanation they desired the witness to make. But we are not prepared to say that a party may thus except to the action of the court in excluding evidence. The proper practice is, for the party whose evidence is rejected to state and show by his bill of exceptions what the tenor of the proposed testimony was, in order that the trial judge, and this court on appeal, may determine its relevancy and competency. All reasonable intendment must be made against one who, by general language in a bill of exceptions, attempts to show error in the action of the trial court. "We find no fault with the instructions given, and perceive no error in refusing those refused. It may be true that, ordinarily, one who pays for property thereby becomes the owner thereof. But, under the facts of this case, the instruction by which this principle was announced would have been well calculated to mislead the jury. Certainly, under the written contract, there was to be no'delivery of the property until it ■ was in the river, cribbed and prepared for rafting. The final payment was not to be made until then, and though it may be true that Leonard had advanced to Miller, in money and supplies, more than the price of the logs, this was not necessarily a payment for the logs, under the contract, so as to vest title in Leonard. On an accounting Miller may have been indebted to Leonard in a greater sum than the value of the logs, and yet the logs have remained his property. The controversy in the court below seems to have been waged upon the point of a delivery by Miller to Leonard before the levy of the plaintiff’s writ, and upon this issue the claimants properly lost. [769] There is a suggestion of a defense in the evidence, upon the ground that if, in fact, Miller had not delivered the logs to Leonard under his contract, he was nevertheless es-topped to deny title and possession in the claimants by reason of standing by and seeing them deal with Leonard as owner, and buy and pay for the logs. The witnesses several times approached this defense, but veered or were diverted from it. The plaintiff could subject to his demands the property seized only while it remained that of Miller, and it was essential that his lien should be fixed upon it before any intervening right or equity of third persons had attached. Frank v. Robinson, 65 Miss., 162. And if Miller should have been estopped to claim the property as against the claimants, so also would be his creditors. But no prominence was given to this defense and no instruction asked concerning it. The evidence in its support was not strong enough, to warrant the giving of the peremptory instruction asked by the claimants, and in no other form is it presented by the record. The contention of the appellants that the lien of the laborers could not be fixed upon the mass of logs, because no one was able to distinguish those cut or hauled by himself, is not tenable. The judgment is affirmed.