Joe P. Clevenger v. E. A. Blount, 103 Tex. 27

Mr. Chief Justice Gaines delivered the opinion of the court. This action was brought by E. A. Blount against Joe P. Clevenger ■ to recover damages for the cutting and appropriating of timber upon the land of plaintiff. The plaintiff recovered a judgment for $7,000 —the value of the lumber into which the timber was manufactured. Clevenger was a sawmill owner and bought .of Blount 829 acres of land. The defense to the action was that if defendant had cut the timber upon plaintiff’s land, which was denied, it was cut under a mistake of fact evidenced by the representation of John S.

Doughtie, who acted as agent of the plaintiff in the sale of the land, and who, as alleged, pointed out the land upon which the timber was cut as the land that was to be sold. The first assignment of error in the application for the writ of error was that the court erred in not instructing the jury that if Doughtie ■ pointed out the land purchased or to be purchased, and showed the land from which the timber was taken, as a part of that purchased or to be purchased, Blount would be estopped to claim any damage for the timber so cut.

The court charged the jury that if they should find that defendant, Clevenger, cut the timber intentionally and wrongfully and could have known by the use of the care which a prudent person would have exercised, in order to ascertain the fact, whether the timber belonged to him or to plaintiff, then they should return a verdict for the plaintiff for the value of the timber as manufactured into lumber by the defendant; but that if they should find that defendant cut and appropriated the timber on the land of plaintiff, after having exercised the care of a prudent person to ascertain that the timber was not on the land of the plaintiff, then they should find for the plaintiff the value of the timber as it stood on the land.

The jury found expressly for $7,000, the value of the timber as manufactured into lumber. Thus it is seen, that the jury found that the defendant intentionally and knowingly cut the timber, and that he did not exercise the care a prudent man would have exercised, in order to ascertain that the timber cut by him was not upon the land of the plaintiff. So it appears that if the issue of estoppel had been submitted to the jury, the verdict would necessarily "have been the same.

These charges are also objected to for the reason that they say “a prudent person” without annexing the qualifying adverb, “ordinarily.” But we think that “a prudent person” means an “ordinarily” prudent person and that if defendant wanted a more specific charge he should have asked for it. We do not notice any objection to the charges except those made in the application for the writ.

There is much complaint in the anplication for the writ of error that the jury were not told that if the agent of the plaintiff pointed out the timber upon the land and made a mistake in so doing and the defendant cut the timber so pointed out, plaintiff would be es-topped to claim damages for the timber so cut. But the authorities hold, that if a party has the means of readily ascertaining the true facts and fails to exercise such means, the other party will not be estopped. (16 Cyc., 738, and cases there cited; Hale v. Skinner, 117 Mass., 474; Park Assn. v. Shartzer, 83 Md., 10; Perkin’s Lumber Co. v.

Thomas, 117 Ga., 441; Western Land Assn. v. Banks, 80 Minn., 317; Murphy v. Clayton, 113 Cal., 153.) The defendant, by getting a surveyor and running the lines, could easily have ascertained that the agent was mistaken in his statements and could have ascertained the true facts, and this he failed to do. Besides, it seems that the rules of estoppel do not apply to representations as to the boundaries between estates. (Liverpool Wharf v. Prescott, 7 Allen, 494; Thayer v. Bacon, 3 Allen, 163; Brown v. Boston & W. R.

Co., 5 Met., 478.) It is to be observed, that the witness Doughtie did not admit that he had misrepresented the boundaries of the land. He testified that he showed the defendant the line about which he is claimed to have been mistaken. It is also assigned' that the court erred in permitting the interrogatories to defendant, which had been propounded to him by plaintiff and which he had not answered, to be read and taken as confessed.

The interrogatories were propounded by the plaintiff and the notary to whom they were committed issued a notice to the defendant to appear at two o’clock on a certain dajq at his office, to take the deposition. The defendant told the notary that he would not answer the interrogatories. As to the question of answering the interrogatories, the defendant Clevenger and the notary both testified. The court held that the interrogatories should be taken as confessed.

But counsel for the plaintiff withdrew all objection to Clevenger testifying in his own behalf and he subsequently testified in the case upon all the points inquired about in the interrogatories. We think that if the court erred in taking the interrogatories as confessed, that the error was cured when the defendant was permitted to testify fully as to the matters inquired about, and that no prejudice was done by the court to the defendant in its ruling. Finding no error in the proceedings which led to the judgment, it is affirmed. Affirmed.