Tome v. Dubois
ERROR to the Circuit Court for the District of Maryland; the case, as stated in the brief of counsel, and assumed by this court, being in substance thus:
Dubois & Lowe brought trover against Tome, Shure & Abbott to recover damages for the conversion by them of certain saw-logs, and certain planks, which Dubois & Lowe alleged to be their property.
At the trial of the cause, evidence was offered on the part of the plaintiffs, that on September 30th, 1861, several booms on the Susquehanna River were carried away by a freshet, and that a large quantity of logs for lumber were swept down the river; that telegrams were at once sent to the postmasters at Port Deposit and Havre de Grace, towns on the lower part of the river, requesting them to have the logs caught and saved for the owners, and that under such notices, the defendants caught and saved a quantity of the logs, and at once began to saw them into lumber. Evidence was also offered, that a few days after the freshet, the owners of the logs appointed a committee of three persons to go down the river, and settle with the persons who had saved any portion of the logs, and with full authority to sell the same; that on the 7th or 8th October, 1861, the committee went to the sawmill of the defendants, about seven miles from Havre de Grace, and saw some of the logs there; that the committee offered to sell to the defendants all the logs between Safe Harbor Dam and Havre de Grace, which included the logs then in the possession of defendants, but the parties could not agree at to the terms of sale; that the defendants were then engaged in sawing the logs, and had prior to that time sawed som of them, and that the committee prohibited all further sawing thereof; that they estimated the lumber which had been sawed at from 40,000 to 200,000 feet; that they made several visits to the mill of the defendants, and on their last visit, which was in December, 1861, and was for the purpose of ascertaining and measuring the whole amount, there were, in their judgment and by their measurement, 400,000 feet of sawed lumber, and 100,000 feet in logs. Evidence was also offered, that on the 26th October, 1861, the plaintiffs bought all of the logs from Safe Harbor to Havre de Grace from the committee, and settled with them therefor; that on the next day the plaintiffs gave notice to Tome (one of the defendants) of the purchase, and he having refused to pay them for the logs which had been sawed, they demanded possession of all the lumber sawed and unsawed in the defendants' possession, and prohibited the sawing of any more, but he denied their ownership, alleging that the logs and lumber had not been scaled and delivered to them; and that after the logs had been scaled, and the quantity of lumber estimated by the committee in December, 1861, the plaintiffs made another application to the same defendant without success, he referring them to Shure (a co-defendant in this case), of whom they had made repeated demands, and received repeated refusals. The plaintiffs also gave evidence, that the logs when sawed, were worth from $13 to $16 per thousand feet.
On the part of the defendants, evidence was offered that after the receipt of the notices by telegraph, they commenced to save the logs as they were brought down by the freshet, and that with the expectation of becoming the purchasers of the logs, they sawed and converted the same into lumber as fast as they were saved, and directed the foreman at their saw-mill to keep an account of the same; that they had converted about twenty-two logs into lumber, when the committee came to the mill, and objected to the manner of keeping the account, and gave directions as to the keeping of the same in a different manner; that of the logs when so sawed into lumber they had sold three canal-boat loads on the 18th and 25th of October, 1861, and received the money therefor, at the value of $11 per thousand feet; that about 780 logs were the whole amount so recovered and sawed by them, and that from the moment they heard of the sale of the logs by the committee to the plaintiffs, they ceased either to catch or saw the logs; that five of the logs sawed would make a thousand feet of lumber; and that it was worth $3 per thousand to saw it, and $5 per thousand to save the logs. The defendants also proved, that when called on by the committee after they had made their final estimate and measurement of the lumber, for an account of the logs so caught and manufactured into lumber, they expressed a willingness to furnish such account, and to pay therefor to the committee, for themselves or for the owners, but would not furnish an account for nor settle with the plaintiffs, whom they refused to know in the matter.
The defendants requested the court to instruct the jury as follows:
1. If the jury shall find that the logs in question were the property of the several parties shown by the evidence to have constituted the committee to dispose of the same, and that the defendants took the logs into their possession, and sawed the same into boards without the consent of the owners, then the taking and sawing were a tortious conversion of the logs, for which the defendants became responsible to the original owners in trover and the plaintiffs are not entitled to recover in this action, notwithstanding the jury shall also find that after the conversion, the plaintiffs purchased all the former owners' interest in the logs.
2. That if the jury shall find for the plaintiffs, the measure of damages is the value of the logs at the time and place of the conversion.
3. If the jury shall find that the logs in question were saved by the defendants from the freshet for the e nefit of the owners when they should appear, and then shall further find that being perishable, they were sawed by the defendants also for the benefit of whom it might concern, then the measure of damages will be the value of the logs at the time and place they were so saved, or the value of the lumber, deducting therefrom the cost of saving and sawing.
4. If the jury find from the evidence that the logs were saved in conformity with the instructions of those who were the owners thereof at the time of the freshet, and that they or so many thereof as were saved were hereafter sawed into plank, with the sanction of the committee representing the owners, then the jury, in estimating the value of the logs and lumber at the time of the demand and refusal, are to allow a reasonable sum as compensation for saving such logs, and sawing the same into plank.
But the court rejected the prayers presented by the defendants, and instructed the jury:
If the jury find from the evidence in this case that the sawlogs and planks found by the witnesses at defendants' mill were saw-logs that had come down the river during the freshet, belonging to the owners represented by the committee, or plank sawed from the logs, and that the logs and plank were sold by the committee to the plaintiffs in this case, and that subsequently to the purchase the plaintiffs demanded the same from the defendants, and that the defendants refused to give up the same to the plaintiffs, then the plaintiffs are entitled to a verdict for such sum as the jury may find the logs and plank to have been worth at the time of such demand and refusal at the mill of the defendants, with interest from the time of such demand, after deducting whatever cost the jury may find the defendants incurred for the saving of the logs, and also the cost of sawing; if the jury shall further find that the saving and sawing were done at the request or by the sanction of the owners or the committee.
Exceptions were duly taken by the defendants to the refusal of the court to instruct the jury as requested and also to the instructions given by the court; and the refusal and the instructions given were now the matters in question here.
Mr. G. H. Williams, for the plaintiff in error, contended, 1st, that if the sawing of the logs (which was a necessary part of their saving) was a tortious conversion, then the right of action therefor was not assignable,  and also that the instruction tended to confuse the jury by leaving to them to find or not a fact which was not disputed, viz., that at least the logs were saved under instructions. That the defendants were not, at all events, trespassers ab initio; and that if the plaintiffs could not sue for so many of the logs as were converted previous to their purchase, there was no separation of the residue, or delivery by the former owners, for which trover would lie. 
Mr. J. N. Steele, contra.
Mr. Justice CLIFFORD delivered the opinion of the court.
^1 Overton v. Williston, 31 Pennsylvania State, 160; Gardner v. Adams, 12 Wendell, 297; McGoon v. Ankeny, 11 Illinois, 558; Dunklin v. Wilkins, 5 Alabama, 199.
^2 White v. Wilks, 5 Taunton, 176; Shepley v. Davis, Id. 622.