#### Mrs. BELLE F. WALL et al. v. LUTHER F. HOLLOMAN.

(Filed 18 October, 1911.)

Wrongful Conversion — Sevérance of Logs — Good Faith — innocent Purchaser — Cost of Hauling — Measure of Damages — Claim and Delivery — Waiver.

In an action for tbe wrongful conversion of certain sawmill logs wbicb had been purchased in good faith from the supposed owner of the land, but who had in fact but a life estate therein, the measure of damages against an innocent purchaser for value will not be increased by the fact that the logs had been hauled at a great expense to a public landing, by water, and there sold; for in the absence of evidence of any increase in the value of the logs otherwise, the damages will be the value of the logs at the place from which they were cut; and while it would have been otherwise had the action been one of claim and delivery, the plaintiff, by his action, has waived his right thereto.

Allen and Walkee, JJ., dissent.

Appeal from Carter, J., at Spring Term, 1911, of Hebteobd.

Two actions were brought and by consent are consolidated.

Tbe action is brought to recover for tbe wrongful conversion of certain sawmill logs cut from tbe Gatlin land, by Tully Gatlin, who transported them to tbe water at Sumner’s Landing and there sold them to tbe defendant, Luther Holloman, for $84.07, admitted to be tbe value .of tbe logs at tbe water.

*276It is admitted that the logs measured 12,010 feet and were worth in the woods where cut and converted by Tully Gatlin $2 per thousand feet. Defendant before trial tendered judgment for $24 and costs.

It is admitted that the plaintiffs, except Mrs. Wall, are entitled to recover the value of the logs in the woods or at the landing; His Honor instructed the jury to award the latter sum as the measure of damages. Defendant excepted and appealed.

Winborne & Winborne for plaintiffs.

D. 0. Barnes for defendant.

BbowN, J.

It is admitted that the logs were cut in good faith by Tully Gatlin under an agreement with Mrs. Wall, the life tenant of the Gatlin land, and that they were transported some distance and at considerable expense to the landing by Tully Gatlin and sold in good faith to defendant — a bona fide purchase without knowledge of any defect in the title. The only question presented relates to the measure of damages for the conversion of the timber.

If plaintiffs were suing Tully Gatlin for damages for a trespass upon the land it is admitted they could recover no more than the value of the timber at the place of severance, where it was converted into a chattel, together with any actual damage done the land in removing it therefrom. Gaskins v. Davis, 115 N. C., 85; Dorsey v. Moore, 100 N. C., 44; Bennett v. Thompson, 35 N. C., 147.

There can be no doubt that had plaintiffs brought an action in the nature of a claim and delivery for those logs at the landing they would have been entitled to recover them as found, and the defendant would not have been entitled to any enhanced value by reason of the cost and expense of transporting them to the landing. This arises from the impracticability of giving the defendant the benefit of his labor.

But where, as in this case, the owners of the logs voluntarily waive the right to reclaim them in specie, the difficulty of separating the enhanced value given to them by the labor of the trespasser in transporting them to the water no longer exists.

*277“It is then,” says the Supreme Court of Wisconsin, “entirely practicable to give the owner the entire value that was taken from him, which seems to be all that natural justice requires, without adding- to it such value as the property may have after-wards acquired from the labor of the defendant.” Weymouth v. R. R., 17 Wis., 550.

It is admitted that there are two rules for the admeasurement of damages in cases like this prevailing in the courts of this country — one the severe rule, which allows the defendant, however innocent, nothing for enhanced value imparted to the chattel solely by his labor, and the other, the lenient rule, which depends largely upon the intention or mala fides of the defendant, and, according to other authorities, upon the form of the action.

In referring to this, the English author Mayne in his work on Damages, p. 488, says: “In America there is as usual a conflict,” quoting- from both Kent and Story. In reference to the latter, Mayne says: “On the other hand, Story, J., laid it down that the true rule is the value of the property at the market price at the time of the conversion, and this is the doctrine generally prevailing. Mr. Sedgwick takes same view.”

In the notes on same page the annotator to Mayne says: “The general rule in this country is that the measure of recovery is the market value of the property at the time of conversion, with interest to the time of the trial,” citing a great many eases in support of' his text.

The Am. and Eng. Ency., p. 720, vol. 28, says: “The value of the property converted is to be estimated at the place of conversion.” After adverting to the conflict of decisions, the editor says: “The better rule, which is now most generally recognized, is that where the original taking is without wrongful purpose or intent, and under the belief that the taker has a right to the property, the owner can recover only the unimproved value of the property; but where the original taking was willful and without color or claim of right, the owner is entitled to recover the value of the property at the time of demand for its return and in its condition at that time, and in such a case it is not material that the wrongdoer has changed its char*278acter or by improvements 'greatly enhanced its value.” Hale on Torts, 406-410, 417; 13 Cyc., 170; Cushing v. Longfellow, 26 Me., 310; Morgan v. Powell, 43 E. C. L., 734; Moody v. Whitney, 38 Me., 174; Forsyth v. Wells, 41 Pa. State, 291.

The last two cases were actions of trover and hold that in such action where the property was converted in good faith by mistake the rule of damage should be the same as in trespass. The Pennsylvania case arose out of a conversion by mistake because of the uncertainty of boundaries, and the decision is based upon Baron Parke’s judgment in Wood v. Morewood, 43 Eng. Com. Law, 810.

A very interesting and learned discussion of the subject will be found in Coal Co. v. Cox, 39 Md., 1, where the cases are reviewed. Also, see Mining Co. v. Hertin, 26 Am. Rep,, 521, in the notes to which are collated a large number of cases sustaining our view.

We think the rule as laid down by the Supreme Court of Wisconsin in Weymouth v. R. R., supra, is not only the better law and founded in principles of natural justice, but that it has received the distinct indorsement of this Court in Gaskins v. Davis, supra, wherein the opinion is quoted from at length.

This rule is founded upon the reasonable and just theory that in the absence of willful wrongdoing compensatory damages are intended as a pecuniary equivalent for the property lost by defendant’s wrong, and where property is lost, converted, or destroyed, the owner is compensated when he receives its full value in money.

The place where these logs were converted and taken from plaintiffs was in the woods at the time of severance. The enhanced value at the landing was imparted solely by the cost and expense of transporting them there.

If between the time of severance and the date they were found at the landing the logs had increased in value from other causes, not imparted by the innocent trespasser’s labor, plaintiffs would be entitled to recover such increased value; but no such claim is made in this case.

It is not denied that the enhanced value arises entirely from the cost and expense of transportation to the water. Therefore *279we are of opinion that the plaintiffs are entitled to recover the value of 12,010 feet at $2 per thousand feet, the admitted value of the logs at the place of severance, with interest from that date.

Reversed.

MOTION TO DISMISS APPEAL IN ABOVE CASE.

Appellee moves to dismiss the appeal for noncompliance with Rule 19 in regard to assignments of error.

We are of opinion that the rule has not been fully complied with. Jones v. R. R., 153 N. C., 419. But inasmuch as the appellant had the errors properly assigned, printed and attached to the record before the ease was called, for reasons given by counsel and in the exercise of a sound discretion we will not dismiss the appeal, as is usually done. Section 2 of Rule 19 provides that “All the exceptions relied on, grouped and numbered, shall be set out immediately after the statement of the case on appeal.” This assignment of errors must be a part of the transcript of appeal, and embodied in it when sent to this Court and printed, so counsel for appellee can know what exceptions are relied upon and intended to be presented to the Court, and prepare accordingly. It is a rule which when properly complied with greatly facilitates the consideration of appeals.

In this ease the appellee has not been taken at any disadvantage, as there was only one exception taken on trial, and that was stated in the record, but not properly stated.

Motion denied.

AlleN, J.,

dissenting: Tully Gatlin wrongfully cut timber trees on the lands of the plaintiff, and sold them to the defendant. The trees were worth $24.02 on the land after they were severed, and $84.07 at the time of sale to the defendant. The Court is of opinion that the plaintiffs can recover $24.02, while I think they ought to recover $84.07.

The amount involved is small, but the precedent to be established is important 'and may affect many transactions. It is for this reason I feel justified in stating the grounds of my dissent.

*280Four impositions are announced in tbe opinion of tbe Court:

(1) That in an action for conversion against tbe original trespasser, wbo bas cut timber on tbe land of another, tbe measure of damage is tbe value of tbe trees on tbe land after they have been severed.

(2) That tbe owner of tbe land is not compelled to sue in conversion, but may follow tbe property and may reclaim tbe trees wherever be finds them, and although in tbe bands of a purchaser without notice.

(3) That if tbe owner elects to take tbe trees, be is not chargeable with any expense of cutting or transporting tbe trees, nor with any enhancement in value.

(4) That tbe usual rule for tbe admeasurement of damages in actions for conversion is tbe value of tbe property at tbe time of tbe conversion.

These principles seem to be well established, and are sustained by tbe authorities in this and other States; but, with great respect, I think they have been misapplied to tbe facts.

No authority is referred to in tbe opinion of tbe Court which deals with tbe rights of tbe owner as against tbe jrar-chaser.

Tbe plaintiffs here are not suing tbe original trespasser, but the purchaser from him, and there is no suggestion in tbe record that they bad elected to sue for damages prior to tbe purchase by tbe defendant, or that they bad abandoned their property in tbe trees.

They are demanding damages of tbe defendant for bis conversion, and if we fix tbe time of tbe conversion, they are entitled to recover tbe value of tbe property as of that time.

Under tbe opinion of tbe Court, tbe plaintiffs were tbe owners of and entitled to tbe possession of tbe trees at tbe time tbe defendant bought them. If so, tbe defendant bought tbe trees of tbe plaintiffs, and, by buying, converted them; and if it be conceded that there can be but one conversion, and tbe plaintiffs bad done no act prior to tbe purchase by tbe defendants indicating an election to recover damages, and they bad *281the right to recover the trees at the tim'e of the purchase, the conversion then took place, and by the defendant.

The person who sold the trees had committed a trespass, but it was with the plaintiffs to elect whether they would follow the trees or treat them as converted; and until they exercised this right, no conversion had, in law, taken place.

In other words, the theory upon which the law is administered in actions like this, as I understand it, is that the trespasser has wrongfully taken away the property of the owner, and that the owner may follow the property and reclaim it, or he may sue the trespasser for damages. If he sues the trespasser for damages and recovers, the title passes to the trespasser and he may do with it as he pleases.

If, however, the owner does not sue the trespasser, but elects to demand the property in specie, he may do so, and can recover it in the hands of an innocent purchaser.

In both cases, that of the trespasser and the purchaser, there is an act of conversion, but the property has not been converted until the owner waives his right to the property itself by demanding its value in damages.

In the present case the owner had the right to demand of the defendant the trees taken from his land. If he had done so, and there had been a refusal to surrender possession, can there be any doubt of the right of the owner to recover their value at the time of the refusal? If it should be held otherwise, and that he could only recover the value at the time of the severance of the trees on the land, the right of the owner of property would be dependent on the act of a wrongdoer, and not on his own consent.

In the estimation of the law, the rule for which I contend can work no hardship, as the purchaser, if required to pay the value of the property, can recover the same amount from his vendor upon the implied warranty of title, which obtains in sales of personal property.

On the contrary, to what results may the rule adopted by the Court lead ?

It may enable a wrongdoer to go upon the land of another and cut timber without the consent of the owner, and sell it *282for $84, and tbe purchaser gets a good title upon paying $24. That is tbe judgment of tbe Court between the parties to tbis record.

It may also do a great injustice to the purchaser. Suppose tbe trespasser cuts timber, worth $100 on the land after it is severed, and it deteriorates in value, and it is taken to market and is sold to a purchaser for its value at that time, $50.

It is an old saying and true, that “It is a poor rule that does not work both ways,” and under tbe rule adopted by tbe Court tbe innocent purchaser must pay $100, tbe value of tbe trees when severed, for property worth $50.

There is eminent authority for tbe views I entertain.

In Woodenware Co. v. United States, 106 U. S., 432, timber trees were cut on tbe lands of tbe Government by a willful trespasser and sold to tbe "VVoodenware Company, “which was not chargeable with any intentional wrong or misconduct or bad faith in tbe purchase.” Tbe trees were worth $60.71 on tbe land after they were severed, and $850 at the time and place they were sold to tbe "Woodenware Company. ' It was held that tbe Government was entitled to recover $850, and tbe Court says: “Tbe timber at all stages of the conversion was tbe property of tbe plaintiff. Its purchase by defendant did not divest tbe title nor tbe right of possession. Tbe recovery of any sum whatever is based upon that proposition. Tbis right, at tbe moment preceding tbe purchase by defendant at Depere, was perfect, with no right in any one to set up a claim for work and labor bestowed on it by tbe wrongdoer. It is also plain that by purchase from tbe wrongdoer, defendant did not acquire any better title to tbe property than bis vendor bad. It is. not a case where an innocent purchaser can defend himself under that plea. If it were, be would be liable to no damages at all, and no recovery could be bad. On tbe contrary, it is a case to which tbe doctrine of caveat emptor applies, and hence tbe right of recovery in plaintiff.”

I would not be candid if I did not say that tbe Court lays much stress on tbe fact that tbe original trespass was willful, and suggests that tbe rule might be different if it were not for *283tbis fact; but in dealing witb one who buys in good faitb, I cannot see bow tbe undisclosed motive of bis vendor can affect liim.

In Wright v. Skinner, 60 So. R., 338, tbe Supreme Court of Florida says: “If tbe defendants are innocent vendees, without notice, of a willful trespasser, tben tbe measure of damage against them would be tbe value of tbe logs at tbe time and place of tbeir purchase thereof from such willful trespasser.”

In Nesbitt v. L. Co., 21 Minn., 491, tbe trees were cut on tbe land of the plaintiff without bis permission, and sold to tbe defendant. Tbe trees were worth $2.50 per thousand on tbe land, and $6 per thousand when sold to tbe defendant at Anoka. It was held that tbe plaintiff could recover $6 per thousand, tbe Court saying: “That plaintiff did not lose bis property in tbe logs by tbe wrongful removal of them is admitted. He was as much tbe owner of them' at Anoka, where they were converted, as on bis land, where they were wrongfully taken from him. Tbis being so, bis right to recover tbe logs themselves, or tbeir value at tbe time and place of conversion, would seem to follow of course.”

Tbe same principle is laid down in Tuttle v. White, 46' Mich., 487.

, For tbe reasons presented, and upon authority, I think tbe judgment should be affirjned. 1

Justice Waleer concurs in tbis opinion.