Dunbar Furnace Co. v. Fairchild , 121 Pa. 563 ( 1888 )

Opinion,

Mr. Justice Green:

The verdict in this case was rendered in favor of the plaintiffs for “single damages and interest amounting to $2,320.70.” How much of the verdict was for interest and how much for the single damages, it is impossible to learn, as the two are aggregated, and the verdict says nothing as to the amount allowed for the damages. The learned court below, on a rule for that purpose, trebled the whole amount of the verdict and entered judgment for $6,962.10. As this included interest as well as damages, and as neither the act of 1824, nor any other law, allows the interest to be trebled, it was error to enter judgment for three times the whole amount of the verdict, and the fifteenth assignment of error must be sustained.

We think the question put to James Fairchild on cross-examination and rejected, should have been admitted, and the second assignment is sustained. The question was in the line of the examination in chief.

Neither the original nor the amended narr, counted upon the act of 1824, and as the only object of the amendment was a recovery under that act, it did not help the cause of action. It has been many times decided that in order to recover under that act, it is necessary to declare specially upon its terms, and that a common law action of trespass will not suffice. In Hughes v. Stevens, 36 Pa. 320, we said: “ The counts in the narr are in accord with the common law actions, and there is in them no reference whatever to the statute under which the recovery of treble damages is claimed. This is undoubtedly an omission which precluded the plaintiff’s right to treble the damages.....The statutory action is. cumulative to the common law remedy, or perhaps rather an optional or alternative remedy, for a resort to either would be a bar to the other. But if the statutory action be intended, the defendant should be apprised of it in the usual way, namely, in the narr, so that he may shape his defence accordingly. We have held it to be sufficient that the narr conclude with an averment that the trespass was against the act of assembly,” etc. The difficulty with the present case is, that there is not only no conclusion contrary to the form of the statute, etc., but there is no allegation of any other kind that the action is brought under the statute. The first assignment is sustained, and also the fifth.

The act of 1872 has no application in such a case, because the amount to be recovered depends upon the pleadings prior to the verdict. If the pleadings do not justify the larger verdict, no such verdict could be lawfully rendered, and therefore it cannot be sustained by a subsequent amendment.

It is clear upon the authorities that if the plaintiffs, or some of them, knew of the defendants cutting and removing the timber, and consented thereto without objection, they would not be entitled to treble damages; and it is also true that such consent may be inferred from acts as well as words. In Kramer v. Goodlander, 98 Pa. 363, we said: “ The ruling of the learned judge was clearly right unless the plaintiff within the intendment of the statute consented to the cutting and taking of the timber. Consent may be shown by acts as well as words. As the man who cuts timber is bound to know it is on his own land, or that he has the owner’s permit, so the owner of timber land is bound to know where it is, and to do no act to mislead an adjoining owner or adverse claimant.” As there was undoubted evidence of the assent of some of the plaintiffs to the cutting and removing of the timber by the defendant, the eighth point of the defendant should have been affirmed, and the ninth assignment is therefore sustained. The same is true of the sixth point, and the seventh assignment is sustained.

This ruling would apply also to the fifth and seventh points, but, as they both include the idea that the cutting was done under a bona fide claim of right, we cannot say there was error in refusing the points in their entirety. We cannot see how the cutting can be regarded as having been done under a bona fide claim of right. That claim, as we understand it, is founded upon the agreement with Alexander Fairchild, made in 1865. He was the father of the plaintiffs, and had a life estate in the land. It is true, he assumed to grant the right to cut the timber absolutely, and it was good as against him and those claiming under him. But the title of the plaintiffs was derived from their mother, and the lawful extent of their father’s grant would necessarily be limited by the extent of his interest. His interest ceased with his life, and this the defendant was bound to know. With this knowledge it can scarcely be said that a claim against the plaintiffs, founded upon the agreement with their father in 1865, is, or is to be regarded as a bona fide claim of right. There is, indeed, a provision in that agreement for the conveyance to Fairchild of a tract of one hundred acres in consideration of the grant, but it was not to be delivered until such other deeds, as were necessary to perfect the title which Fairchild attempted to convey, were obtained and delivered. As we understand, this part of the Fairchild agreement was never carried out on either side, and the bona fides of the claim of right to the timber remains impeachable, because of Fairchild’s manifest lack of right to affect the interest of his children. The sixth, eighth and tenth assignments are therefore not sustained.

We think there should have been more definite instruction than is found in the charge on the measure of damages, but we are not inclined to reverse on that ground, and the remaining assignments are not sustained.

Judgment reversed, and a new venire awarded.