C. A. SMITH TIMBER CO. et al. v. AULD et al., 218 F. 824

HOOK, Circuit Judge. The Aulds recovered judgment against the defendants C. A. Smith Timber Company, Potter-Casey Company, and George Sands for the value of logs wrongfully cut from their land in Cass county, Minn., and driven down the Willow and Mississippi rivers to Minneapolis, in that state.

The defendants say: (1)_They acted' independently of each other, and there was no joint liability,, even if there was a conversion of the logs; (2) the plaintiffs made a completed sale of the logs to Sands shortly after the trespass and before they were driven; (3) there was an accord and satisfaction; (4) the measure of damages applied was wrong. The arguments on these points are in part arguments against the verdict of the jury on conflicting evidence.

The trial court submitted to the jury the determination of the disputed questions of fact and instructed them upon the rules of law applicable to the several contentions. The jury found for the plaintiffs, and in each case there was substantial evidence supporting their conclusion. We must therefore take the facts against the defendants. The Potter-Casey Company, having a contract to furnish the Timber Company a large quantity of logs, in turn contracted with Sands for part of them.

Sands wrongfully cut timber from plaintiffs’ land, banked the logs on the Willow river, .an upper tributary of the Mississippi, and when the ice went out in the spring drove them to the mouth of the Willow river and delivered them to the Potter-Casey Company. The Potter-Casey Company drove them down the Mississippi river to and over the Brainard dam, and the Timber Company received them below the dam and had them driven to its mills at Minneapolis. When the logs were cut by Sands, the brands and marks of the Timber Company were placed on them.

The Timber Company had a representative in the woods, not to determine where the logs should be cut, but to see that the dimensions and markings were as required by its contract with the Potter-Casey Company. When the logs started down the Willow river, they moved progressively after the fashion of log-driving to Minneapolis, which both Sands and the Potter-Casey Company knew from the outset was their destination. In other words, there was no new transaction between the parties, or with others, which broke the continuity of transportation.

Sands knew he was a trespasser, and had no right to cut the timber from plaintiffs’ land, and both the Potter-Casey Company and the Timber Company had notice of it before the logs were moved in the Willow river. In these circumstances the plaintiffs had a right to sue all of them jointly. All knew or had notice of the initial trespass and the destination of the logs, and all took

part in their movement. That their acts of dominion were successive, instead of contemporaneous, does not destroy their joint responsibility. Smith v. Briggs, 64 Wis. 497, 25 N. W. 558; Mashburn & Co. v. Dannenburg Co., 117 Ga. 567, 44 S. E. 97; Cram v. Thissell, 35 Me. 86. Upon being notified of Sands’ trespass, one of the plaintiffs went to Minnesota and found the logs cut from their land lying on the ice and along the bank of the Willow river. Negotiations for a compromise ensued between him and Sands. Defendants claim they amounted to a sale of the logs to Sands, whether he gave the consideration or not.

The jury found, and we think rightly, that there was no sale, but an attempt at compromise. To be effective, a compromise must be followed by- settlement or performance of the terms. Defendants argue that, if there was no sale of the logs, there was an accord and satisfaction ; but, similarly to a compromise, an accord must be followed by a satisfaction. Shubert v. Rosenberger, 123 C. C. A. 256, 259, 204 Fed. 934, 45 L. R. A. (N. S.) 1062. One of the disputed questions of fact was whether Sands performed as agreed, and the jury found by its verdict that he did not.

It was shown that the logs cut from plaintiffs’ land were driven to the mill of the Timber Company at Minneapolis. Defendants were held for their value at that place. The charge of the trial court correctly set forth the measure of damages, if the jury believed Sands’ trespass and conversion were due to mistake or inadvertence; also the measure, conformably to the rule in Woodenware Co. v. United States, 106 U. S. 432, 1 Sup. Ct. 398, 27 L. Ed. 230, if Sands acted willfully, but the other defendants had no notice; and, finally, the rule if he acted willfully, and they had notice before the logs were driven.

As already indicated, the jury found Sands’ conduct was willful. If the other defendants had acted without notice, their liability would have been the value of the logs at the time they received them respectively; but, having been notified, as the verdict implies, they were not entitled to that limitation of their liability. In case of intentional trespass and conversion, the owner may pursue and reclaim his property wherever he can find and identify it (Liberty Bell Gold Mining Co. v. Mining Co., 122 C. C.

A. 113, 125, 203 Fed. 795), and as against those who are guilty he can fix the time and place for asserting his remedy for the property itself or its value (E. G. Beechwood Ice Co. v. American Ice Co. [C. C.] 176 Fed. 435). Those who with notice participate in the conversion or removal subject themselves to the same measure of damages, at least while the property retains its original character. Defendants also claim that plaintiffs were estopped from maintaining the action, but we find nothing on which an estoppel could rest. The judgment is affirmed.