Ladda v. Hawley

Myrick, J.: Plaintiff in his complaint alleged that defendant was indebted to him in a balance of $432.25 and interest, for 473,802 feet of [53]pine timber, sold and delivered by plaintiff to defendant, at $1.25 per thousand.

Defendant, in his answer, denied the indebtedness, and averred that the only transaction the parties ever had concerning timber was, that plaintiff represented to defendant that he (plaintiff) was the owner of certain lands, and desired to sell to defendant the timber growing thereon; that, relying upon such representations, and believing them to be true, defendant agreed to pay the above price for so much of said timber as he should cut down and use; that after he had cut down and used the timber, and paid plaintiff in part therefor, he ascertained that plaintiff was not the owner of the timber, but that the same was, when so cut and removed, timber belonging to the public domain of the United States, which plaintiff had no right to sell, and that plaintiff is liable in both civil and criminal actions. Defendant averred that plaintiff ought not to have or maintain his action, for the reason that the contract is void, the only consideration being the granting to defendant by plaintiff the right to cut timber from the public land of the United States, which cutting is prohibited by the laws of the United States.

On the trial, plaintiff gave in evidence an agreement signed by himself, dated May 11th, 1876, expressing that he thereby sold and conveyed to defendant “ all the pine timber growing on his ranch in' Nevada County,” covering 160 acres, for the consideration therein expressed; viz., $100 then paid, the balance to be paid at the rate above specified; “ said timber to be considered as usually cut for milling purposes.” The agreement gives to defendant the use of all springs of water, and right of way for roads, mill sites, etc.,- necessary for the cutting and manufacture of said timber. The plaintiff testified that he filed a pre-emption claim upon the quarter-section of land from which the timber was cut in May, 1874, in the Sacramento United States Land Office, and that the application was entertained; that since the commencement of this suit he had paid to the United States Land Office the Government price of the land; that at the time said contract was made, plaintiff had a portion of the quarter-section under fence. Another witness testified to the quantity of timber cut.

Thereupon defendant moved the court for a nonsuit, on the [54]