SUNSET TELEPHONE & TELEGRAPH CO. v. DAY et al., 70 F. 364

McKENNA, Circuit Judge, after reciting the pleadings and instructions as above, delivered the following opinion: The main controversy between the parties is as to the title of the telephone poles, and the testimony was addressed to this; and, being contlicting, the verdict of the jury cannot be disturbed, unless there was error in the rulings, either in admitting or rejecting testimony, or in the instructions. Defendant claims both: In the former, inasmuch as evidence was admitted of the price paid by plaintiffs to persons from whom they claimed it purchased poles.

In the second, by giving the following instructions: ■ “In addition to tiie amount claimed for tlie poles, tlie contract provided tliat tlie vessel, wliicli tlie plaintiffs were to charter to carry the poles, would take some cross-arms for the defendant, for which the defendant was to pay the plaintiffs. This vessel did carry some cross-arms, and for the transportation •or freight on the cross-arms there is due the plaintiffs, from the defendant, $245.

They are entitled to a verdict for that amount, at least, in this case.” “If the plaintiffs, without the consent of the owner of the land where the timber grew, went upon the land, and cut it, and undertook, under their contract, to furnish that timber to the defendant, and the owner consequently had a right to claim that timber, as against them, or as against their vendees, then it would be the owner of the land that would have a legal claim against the defendant for the price or value of the timber, and hot the plaintiffs; and for the value of so much timber as was unlawfully taken * * * by the plaintiffs from the premises, of the Puget Mill Company, the defendants would have ^ a right to claim, as they do .claim, that a deduction should be made.

You have heard the evidence and the arguments of counsel. On a fair consideration of the Whole case, you are to determine whether this evidence establishes that any number of these-poles were cut on the lands belonging to the Puget Mill Company; and if you so find, you will endeavor, ■from the evidence, to fix the value of so much of the timber as was thus taken from the Puget Mill' Company’s land, and' deduct it from the whole contract price; - and if there is yet a balance, after making such deduction, if there is yet a balance due the plaintiffs, award them a verdict for that balance.

If there is nothing over and above- that deduction, and the credit that has been paid, and.the money that has been paid to the plaintiffs, still coming to the plaintiffs, you will not award the plaintiffs any more than $245.” It may be conceded that the price of the poles purchased by defendant was immaterial, but it does not seem to have been prejudicial. The testimony could only have been introduced to show good faith, and must have been so understood.

The jury could not have understood it, as charged by defendant, as permitting them to consider it as determining the value of the timber claimed by the Puget Mill Company. The value of that, for the purposes of the case, was 'fixed by the contract, and the instructions, with sufficient clearness, indicated this. In passing on the instructions it must be borne in mind that the defendant’s view was that plaintiffs were not entitled to recover for timber cut on the land of the Puget Mill Company. The court adopted this view. .

It said, after giving the instruction supra which is objected to: “Tbe defendant bas pleaded several defenses, but they are all either merged into this one, or abandoned on the trial.

So that the question of titlq — ownership of the timbers — is the question to which the case is narrowed down, and that is the question which is to be submitted to this jury.” And, after stating that the owner of the land where the timber grew was the owner of the latter, the court, continuing, said: “And for the value of so much timber as was unlawfully taken — if any of it was unlawfully taken — by the plaintiffs from the premises of the Puget Mill Company the defendant would have a right to claim, as they do claim, that a deduction should be made. You have heard the evidence and the arguments of counsel.

Upon a fair consideration of the whole case, you are to determine whether this evidence establishes that any number of these poles were cut on the lands belonging to the Puget Mill Company; and if you so find, you will endeavor, from the evidence, to fix the value of so much of the timber as was thus taken from the Puget Mill Company’s land, and deduct it from the whole contract price; and if there is vet a balance, after making such deduction, if there is yet a balance due the plaintiffs, award them a verdict for that balance.

If there is nothing over and above that deduction, and the credit that has been paid, and the money that has been paid to the plaintiffs, still coming to the plaintiffs, you will not award the plaintiffs any more than §245.” There could be no misunderstanding of this. The items of credit or* deduction from plaintiffs’ claim which could arise from their non-ownership of any of the timber, tbe jury was instructed, the defendant was entitled to. Even, therefore, if the instruction as to the $245 freight charge on the cross-arms was error, the finding of the jury made it innocuous.

The plain tills were entitled to have the $245 estimated in the account between them and defendant. The defendant did not deny this, but contended that it and other claims of plaintiffs were canceled by items of countercharge. The jury found against the contention. If it luid found a verdict only for $245, the instruction might have been injurious. In such case, it could be said that the judgment of the jury was constrained by the instruction of the court. But the verdict was for $1,395.22. To tbe second instruction objected to, the criticism of defendant is not justified.

It is clear, when all the instructions and the contentions of tiie parties are considered, that the price or value, as expressed, meant the price or value according to the contract, and as timber, not, as objected by defendant, as stumpage, or value by some other standard. The defendant also assigns as error the action of the court in denying it a new trial. This is not reviewable in this court on writ of error. There being no error in the record prejudicial to defendant, the judgment is affirmed.