Wagoner v. Silva

CHIPMAN, C.

This is an action for damages alleged to have been caused by the unlawful and wrongful entry of defendant on plaintiffs' land and cutting the timber growing thereon and converting the same to defendant's use. Treble damages were claimed, under section 3346 of the Civil Code. The answer denies the wrongful cutting or conversion, but alleges that to a certain extent defendant did, in ignorance of the location of plaintiffs’ lines, cut down certain trees for cord-wood and shingle-bolts; that prior to removing the same from plaintiffs’ land defendant and one John M. Swinford, acting as agent of plaintiffs, agreed upon the amount of the damage, and defendant paid the same to said Swinford, in full discharge of any and all liability by reason of said alleged trespass. The cause was tried by the court without a jury, and defendant had the judgment. Plaintiffs appeal from the judgment and from the order denying their motion for a new trial. It is alleged in the complaint, and admitted by the answer, and found by the court, that plaintiffs are now, and were prior to the alleged trespass, cotenants of the land —each owning an undivided one-half interest therein. Such a cotenancy may exist. (Civ. Code, sec. 161.) It was found by the court that the facts alleged in paragraphs III and IV of the complaint are untrue, and that plaintiffs have not been damaged in any sum by defendant, “save and except those admitted by the defendant in his answer, and for which said damages said plaintiffs had been, and were, prior to the commencement of this action, fully compensated, and that said defendant had been fully discharged therefrom.” These findings are challenged as unsupported by the evidence. The answer admitted and the evidence clearly established the trespass. The denial was only that it was knowingly and willfully committed. This admission was sufficient to show that the trespass was wrongful and unlawful, and the finding to the contrary was unsupported. It was also alleged that the growing trees and timber constituted a large part of the value of said real property, and that by cutting down such trees the premises were materially depreciated in value,—

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to wit, in the sum of three hundred and fifty dollars. The ■evidence was uncontradicted that the property was injured and its value materially lessened, although the extent of the ■damage was shown by evidence to be not so great as alleged. The finding of the court was too broad, and not fully justified by the evidence. The court, however, found that the damage, whatever it was, was fully compensated; and if this finding is justified, no injury resulted from the unsupported findings ■above noted. Witness Swinford testified that he was the agent of plaintiff James C. Wagoner for the sale of the land to defendant after the trespass was committed, and that ■defendant agreed verbally to purchase the land for four hundred and twenty-five dollars, and paid him fifty dollars on ■account of the purchase, which he paid over to Mr. Wagoner, less ten dollars commission. But the damage to the land was not settled for by this agreement. In this he was corroborated by Mr. Wagoner. The evidence of defendant was, that this fifty dollars was paid by him to Swinford in ¡settlement of the damage, and that he made no agreement whatever to purchase the land. The court accepted this latter evidence as against that of Swinford and plaintiff James C. Wagoner, and on this point the finding cannot be disturbed, and, as already intimated, it .renders harmless the unsupported findings above referred to. 'There is, however, nowhere to be found in the record any -evidence that plaintiff Josephine H. Wagoner was taken into account by any of the parties to the transaction, so far as the damage and payment therefor were concerned. There is mo evidence that she was consulted or spoken to by any one, or was represented by any one, in any of the negotiations as to the damage, or received any money paid by defendant, ■or consented to or acquiesced in any payment made by him, or in anything done by her husband or by Swinford or by ■defendant, or had any knowledge of what they or either •of them had done in respect of any payment for the damage. Swinford testified that he was the agent for the sale of the ■property, and he testified that, in accordance with the agreement to sell the land to Silva, he tendered a deed to him •signed by both plaintiffs. Respondent claims that this “shows ■conclusively that she was a party to the agency of Swinford,