Nutting v. Raub

PEEK, J. This is an appeal from a money judgment awarded to J. D. Welch and E. C. Welch, a copartnership (hereinafter referred to as Welch) against Gerald P. Raub and Minnie M. Raub (hereinafter referred to as Raub).

The original proceedings were instituted by K. E. Nutting. The Nutting complaint sought damages against Eaub, alleging that he had trespassed upon certain timber lands owned [505]by him and had removed therefrom specified quantities and varieties of timber of a total reasonable value of $54,525.39 for which judgment was prayed. It is conceded by the parties to this appeal, and was conceded throughout the trial of the action, that Nutting filed his complaint after he had assigned his cause of action to Welch. Therefore, for practical as well as sound legal reasons, this original pleading was ignored by the trial court and hence will not be considered further by us.

The real controversy was and is between Welch and Raub. It is to be noted that although Raub answered the original complaint, he also requested and was granted leave by the court to bring in Welch as cross-defendant. This cross-complaint alleged that he (Raub) was the owner of timber land; that prior to August of 1951 Nutting had owned timber land bordering his land; that prior to August of that year Nutting had transferred this land to Welch; that in 1947 Raub had built a sawmill on his land and engaged in harvesting the timber thereon and manufacturing merchantable lumber therefrom; that prior to August of 1951 Welch falsely represented to Raub that he had surveyed the dividing line between the Raub and Welch properties and ascertained that Raub had unlawfully removed timber from the Welch land and threatened that unless Raub would compensate for the timber wrongfully taken, Welch would begin an action against him for damages; that relying on the Welch misrepresentation and duress (the threat of litigation), Raub had executed a deed and bill of sale of the remaining timber on the Raub land and also agreed in writing that in the course of the trespass he had removed specified amounts of specified varieties of timber from the Welch land; that by virtue of these agreements Welch was given permission to enter upon the Raub land and remove the timber thereon; that Welch would credit that timber against the agreed amount taken by Raub and that Raub would settle with Welch in cash for the amount not compensated for by the timber taken by Welch. The Raub cross-complaint further alleged that the aforementioned settlement agreements had been fraudulently obtained and hence he had been damaged in the reasonable value of the timber Welch had removed from his property. Welch answered the Raub cross-complaint denying all of the allegations of fraud and damage and in turn cross-complained against Raub setting up the compromise agreements and alleging that pursuant thereto he had received from Raub timber of the value of $33,670.35, leaving the sum