Emmerson v. Weeks

Thornton, J.: On the trial of this cause, the plaintiff was nonsuited on the opening statement of his counsel.

The action was brought, as shown by the complaint, to recover for timber cut by defendant from plaintiff’s land, situated in the County of San Mateo, under an agreement made between the parties to this action, the defendant agreeing to pay therefor whatever it was reasonably worth. It is averred that defendant, under such agreement, on the 15th of July, 1877, entered on said land, and cut and removed therefrom one million two hundred thousand feet of timber then growing thereon; that the timber so cut and removed was worth three dollars per thousand feet, and of the aggregate value of three thousand six hundred dollars; that defendant has not paid the same, or any part of it, though often requested so to do, and refuses to pay it or any part of it, and that the said sum is owing and unpaid from defendant to plaintiff.

When the counsel for plaintiff made his opening statement, a long colloquy ensued between the counsel and the Court. The statement was not made in the clearest manner, but from it, as made, it can be readily perceived that defendant agreed to pay the plaintiff for whatever timber was cut and removed by him from the tract of land, what it was reasonably worth; that he had cut and removed a large amount of timber which was of value, and that he had not paid for it. In making his • statement, the counsel introduced several matters not affecting his cause of action, some of which were merely inducement, and others immaterial in making out his case. It is not requisite to state all that was said by counsel in opening his case, and would unnecessarily prolong this opinion t6 do so. But on a fair construction of all that was said, we are of opinion that the counsel stated a cause of action, and should have been allowed to go on and put in his testimony.

We would observe that it would be much better not to [385]nonsuit on an opening statement, unless it is clearly made, and it is plainly evident therefrom that no case can be made out. It is much better to permit the plaintiff to put in his testimony, and that the motion should be then made. It will be found, on pursuing this course, that on many occasions there would be no ground of nonsuit.

The judgment and order should be reversed and the cause remanded, and it is so ordered.

Sharpstein, J., and Morrison, C. J.. concurred.