Opinion
(Filed 18 October, 1911.)
Wrongful Conversion — Severance of Logs — Good Faith — Innocent Purchaser — Cost of Hauling — Measure of Damages — Claim and Delivery — Waiver.
In an action for the wrongful conversion of certain sawmill logs which had been purchased in good faith from the supposed owner of the land, but who had in fact but a life estate therein, the measure of damages against an innocent purchaser for value will not be increased by the fact that the logs had been hauled at a great expense to a public landing, by water, and there sold; for in the absence of evidence of any increase in the value of the logs otherwise, the damages will be the value of the logs at the place from which they were cut; and while it would have been otherwise had the action been one of claim and delivery, the plaintiff, by his action, has waived his right thereto.
APPEAL from Carter, J., Spring Term, 1911, of HERTFORD.
Winborne Winborne for plaintiffs.
D.C. Barnes for defendant.
ALLEN and WALKER, JJ., dissent.
Two actions were brought and by consent are consolidated.
The action is brought to recover for the wrongful conversion of certain sawmill logs cut from the Gatlin land, by Tully Gatlin, who transported them to the water at Sumner's Landing and there sold them to the defendant, Luther Holloman, for $84.07, admitted to be the value of the logs at the water.
(276) It is admitted that the logs measured 12,010 feet and were worth in the woods where cut and converted by Tully Gatlin $2 per thousand feet. Defendant before trial tendered judgment for $24 and costs.
It is admitted that the plaintiffs, except Mrs. Wall, are entitled to recover the value of the logs in the woods or at the landing. His Honor instructed the jury to award the latter sum as the measure of damages. Defendant excepted and appealed.
It is admitted that the logs were cut in good faith by Tully Gatlin under an agreement with Mrs. Wall, the life tenant of the Gatlin land, and that they were transported some distance and at considerable expense to the landing by Tully Gatlin and sold in good faith to defendant — a bona fide purchase without knowledge of any defect in the title. The only question presented relates to the measure of damages for the conversion of the timber.
If plaintiffs were suing Tully Gatlin for damages for a trespass upon the land it is admitted they could recover no more than the value of the timber at the place of severance, where it was converted into a chattel, together with any actual damage done the land in removing it therefrom. Gaskins v. Davis, 115 N.C. 85; Dorsey v. Moore, 100 N.C. 44; Bennett v. Thompson, 35 N.C. 147.
There can be no doubt that had plaintiffs brought an action in the nature of a claim and delivery for those logs at the landing they would have been entitled to recover them as found, and the defendant would not have been entitled to any enhanced value by reason of the cost and expense of transporting them to the landing. This arises from the impracticability of giving the defendant the benefit of his labor.
But where, as in this case, the owners of the logs voluntarily waive the right to reclaim them in specie, the difficulty of separating the enhanced value given to them by the labor of the trespasser in transporting them to the water no longer exists.
"It is then," says the Supreme Court of Wisconsin, "entirely (277) practicable to give the owner the entire value that was taken from him, which seems to be all that natural justice requires, without adding to it such value as the property may have afterwards acquired from the labor of the defendant." Weymouth v. R. R., 17 Wis. 550.
It is admitted that there are two rules for the admeasurement of damages in cases like this prevailing in the courts of this country — one the severe rule which allows the defendant, however innocent, nothing for enhanced value imparted to the chattel solely by his labor, and the other, the lenient rule, which depends largely upon the intention or mala fides of the defendant, and, according to other authorities, upon the form of the action.
In referring to this, the English author Mayne in his work on Damages, p. 488, says: "In America there is as usual a conflict," quoting from both Kent and Story. In reference to the latter, Mayne says: "On the other hand, Story, J., laid it down that the true rule is the value of the property at the market price at the time of the conversion, and this is the doctrine generally prevailing. Mr. Sedgwick takes same view."
In the notes on same page the annotator to Mayne says: "The general rule in this country is that the measure of recovery is the market value of the property at the time of conversion, with interest to the time of the trial," citing a great many cases in support of his text.
The A. E. Ency., p. 720, vol. 28, says: "The value of the property converted is to be estimated at the place of conversion." After adverting to the conflict of decisions, the editor says: "The better rule, which is now most generally recognized, is that where the original taking is without wrongful purpose or intent, and under the belief that the taker has a right to the property, the owner can recover only the unimproved value of the property; but where the original taking was willful and without color or claim of right, the owner is entitled to recover the value of the property at the time of demand for its return and in its condition at that time, and in such a case it is not material that the wrongdoer has changed its character or by improvements greatly enhanced its value." Hale on Torts, 406-410, 417; 13 Cyc., 170; (278) Cushing v. Longfellow, 26 Me. 310; Morgan v. Powell, 43 E. C. L., 734; Moody v. Whitney, 38 Me. 174; Forsyth v. Wells, 41 Pa. St., 291.
The last two cases were actions of trover and hold that in such action where the property was converted in good faith by mistake the rule of damage should be the same as in trespass. The Pennsylvania case arose out of a conversion by mistake because of the uncertainty of boundaries, and the decision is based upon Baron Parke's judgment in Wood v. Morewood, 43 Eng. Com. Law, 810.
A very interesting and learned discussion of the subject will be found in Coal Co. v. Cox, 39 Md. 1, where the cases are reviewed. Also, see Mining Co. v. Hertin, 26 Am. Rep., 521, in the notes to which are collated a large number of cases sustaining our view.
We think the rule as laid down by the Supreme Court of Wisconsin in Weymouth v. R. R., supra, is not only the better law and founded in principles of natural justice, but that it has received the distinct indorsement of this Court in Gaskins v. Davis, supra, wherein the opinion is quoted from at length.
This rule is founded upon the reasonable and just theory that in the absence of willful wrongdoing compensatory damages are intended as a pecuniary equivalent for the property lost by defendant's wrong, and where property is lost, converted, or destroyed, the owner is compensated when he receives its full value in money.
The place where these logs were converted and taken from plaintiffs was in the woods at the time of severance. The enhanced value at the landing was imparted solely by the cost and expense of transporting them there.
If between the time of severance and the date they were found at the landing the logs had increased in value from other causes, not imparted by the innocent trespasser's labor, plaintiffs would be entitled to recover such increased value; but no such claim is made in this case.
It is not denied that the enhanced value arises entirely from the cost and expense of transportation to the water. Therefore we are (279) of opinion that the plaintiffs are entitled to recover the value of 12,010 feet at $2 per thousand feet, the admitted value of the logs at the place of severance, with interest from that date.
Reversed.
MOTION TO DISMISS APPEAL IN ABOVE CASE.
APPELLEE moves to dismiss the appeal for noncompliance with Rule 19 in regard to assignments of error.
We are of opinion that the rule has not been fully complied with. Jones v. R. R., 153 N.C. 419. But in as much as the appellant had the errors properly assigned, printed and attached to the record before the case was called, for reasons given by counsel and in the exercise of a sound discretion we will not dismiss the appeal, as is usually done. Section 2 of Rule 19 provides that "All the exceptions relied on, grouped and numbered, shall be set out immediately after the statement of the case on appeal." This assignment of errors must be a part of the transcript of appeal, and embodied in it when sent to this Court and printed, so counsel for appellee can know what exceptions are relied upon and intended to be presented to the Court, and prepare accordingly. It is a rule which when properly complied with greatly facilitates the consideration of appeals.
In this case the appellee has not been taken at any disadvantage, as there was only one exception taken on trial, and that was stated in the record, but not properly stated.
Motion denied.