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Lawskills.com Georgia Caselaw
NEWMAN MANUFACTURING COMPANY v. YOUNG.
40639.
PANNELL, Judge.
Action for damages; trespass. Troup Superior Court. Before Judge Knight.
1. The petition having alleged that the plaintiff, by contract entered into and attached as Exhibit "A," sold to the defendant pine timber "in accordance with a cruise and marking by one Macon Hunt," the copy of the cruise attached to the petition and marked Exhibit "B" was pertinent and not subject to be stricken upon the demurrers interposed. Bryant v. Atlantic C. L. R. Co., 19 Ga. App. 536 (3) (91 SE 1047).
2. While consent, or a valid license from an owner of land, is a good defense to an action of trespass for acts done within the scope of the license, even if given by mistake, yet the consent is no defense if the acts done are not within the scope of the license or not covered by such consent. 87 CJS 1003, 49; Juchter v. Boehm, Bendheim & Co., 67 Ga. 534 (3a). And when the consent, as in the present case, was to cut an amount of timber sufficient to cover a shortage under a contract between the parties represented by the defendant to exist, such consent is not a defense to an action for knowingly cutting timber in excess of the amount called for by the contract. There being no attempt by the plaintiff owner to set aside or declare void the consent given based upon alleged fraud in the representation by the defendant as to the shortage of marked timber, cases denying such relief where the aggrieved party could by the exercise of ordinary care have discovered the falsity before acting thereon, have no application. For such cases, see Browning v. Richardson, 181 Ga. 413 (182 SE 516); Brim v. Couch, 184 Ga. 310 (191 SE 94); Gleaton v. Georgia Nat. Bank, 21 Ga. App. 100 (93 SE 1023); Martin v. North Ga. Lumber Co., 72 Ga. App. 778 (35 SE2d 270); Robi v. Goldstein, 100 Ga. App. 606 (112 SE2d 165).
3. "A wilful trespasser can be defined in general terms as one who knows that he is wrong, while an innocent trespasser is one who believes that he is right." Autry v. Adams, 95 Ga. App. 207, 210 (97 SE2d 585). Since the petition alleges that the defendant knowingly cut timber in excess of that called for by the agreements, it sufficiently alleges a wilful trespass.
4. The demurrers to the paragraphs alleging the damages in the present case, on the ground "that the measure of damages set forth therein is not the proper measure of damages established by the law Of Georgia in this type of case" is not sufficient to raise the question as to the right of plaintiff to recover on the damages alleged in the petition. Crawford v. Sumerau, 100 Ga. App. 499 (1) (111 SE2d 746).
5. The payment tendered and accepted for a designated amount of timber does not amount to accord and satisfaction for the timber cut in excess thereof, there being no dispute between the parties at the time said payment was tendered and accepted. For cases involving accord and satisfaction, see Rivers v. Cole Corp., 209 Ga. 406 (73 SE2d 196); David D. Doniger Co. v. Briggs, 61 Ga. App. 699 (7 SE2d 321); Hooker-Bassett Furniture Co. v. Georgia Hardwood Lumber Co., 53 Ga. App. 175 (184 SE 910); Pin-Har Lumber Products, Inc. v. Reagin, 95 Ga. App. 364 (98 SE2d 41).
6. The allegations of the petition are sufficient to set forth a cause of action under Code 105-2013 for timber cut and carried away. Whether or not all the damages alleged may be recovered under said Code section we are not called upon to determine. See, in this connection, Code 105-2013; Minor v. Fincher, 206 Ga. 721 (58 SE2d 389); Milltown Lumber Co. v. Carter, 5 Ga. App. 344 (2a) (63 SE 270); McConnell Bros. v. Slappey, 134 Ga. 95 (8) (67 SE 440).
7. It follows that the trial court did not err in overruling the general demurrers and special demurrers to the petition as amended.
The petition, as amended, alleged that plaintiff was the owner of certain lands, and that on September 16, 1961, he entered into a written agreement with the defendant under which he sold to the defendant all the marked pinesaw timber upon said land in accordance with a cruise and marking by Macon Hunt. The contract was attached to the petition as Exhibit "A"; the cruise was attached to the petition as Exhibit "B"; and, a cruise map referred to in the contract was attached to the petition as Exhibit "C." The contract attached to the petition provided that "the manner of payments are as follows: $28,000.00 cash upon execution of this agreement. $28,000.00 cash on January 15, 1962. Weekly payments at $28.00" per thousand feet "Scribner Log Scale for all logs removed from land of grantor after a total of two million feet Scribner Log Scale has been removed by grantee." And, "it is understood by both parties that this agreement covers a quantity of approximately two million one hundred seven thousand feet of logs Scribner Scale (2,107,000) of Pine Sawtimber. In the event there is less than two million feet (2,000,000) Scribner Log Scale of marked Pinesaw logs on herein described lands of grantor, the grantor shall reimburse the grantee for all less quantity at the rate of $28.00 per thousand feet Scribner Log Scale. Such payment shall be made in cash to the grantee upon completion of cutting." There was also a provision that "Grantee shall furnish to the grantor a weekly statement of the number of loads and quantity of logs removed from lands of the grantor." The petition further alleged: That on or about May 2, 1962, the defendant notified the plaintiff that the marked timber was going to cut out approximately 400,000 feet short of the 2,000,000 feet provided in the contract. That under the agreements between the parties the defendant was required to keep a record of the pine timber cut and furnish plaintiff with a weekly statement of the number of loads and quantity of logs removed from the described lands. That relying upon the weekly statements furnished by the defendant which showed that the timber cut out short, the plaintiff agreed to permit the defendant to cut additional timber from the described lands in a quantity sufficient to make a total of 2,000,000 feet, Scribner Scale, but plaintiff did not agree to permit cutting of any timber in excess of 2,000,000 feet, Scribner Scale. That defendant did cut additional pine timber from the described lands, even though de-
fendant had cut more than 2,000,000 feet of pine timber, Scribner Scale, from the described lands. That when the additional cutting had been completed by the defendant, plaintiff was notified by the defendant that a total of 2,005,745 feet of pine timber, Scribner Scale, had been cut from the lands of plaintiff and enclosed a check in the amount Of $160.87 as payment for the 5,745 feet overage. That since 5,745 feet was not unreasonable over cutting and was within the contemplation of the agreement between the parties, plaintiff accepted the check for $160.87 in payment of the 5,745 feet overage, and does not now seek to recover anything for the cutting of this 5,745 feet of pine timber. That contrary to the representations of the defendant that a total of 2,005,745 feet, Scribner Scale, had been cut from the lands of the plaintiff, the defendant exceeded its rights under the original agreement between the parties and exceeded its rights under the oral agreement of May 2, 1962, and cut more than 2,000,000 feet of pine timber, Scribner Scale, from the lands of the plaintiff, to wit: 2,798,100 feet of pine timber, Scribner Scale. That defendant knew that under its agreements with the plaintiff it had the night to cut only 2,000,000 feet of pine timber Scribner Scale, and that under the said agreement it was required to keep an accurate record as to the amount of timber cut by it from the lands described in this petition, and that it was required to cease cutting when 2,000,000 feet of pine timber, Scribner Scale, had been cut, but defendant, in complete disregard of its duty to the plaintiff, exceeded its right under the agreement with the plaintiff and continued cutting timber after 2,000,000 feet, Scribner Scale, had been cut, knowing that it had no claim to the additional timber or to the land from which it was cut. That in exceeding its right under the contract, the defendant wilfully and knowingly committed trespass on petitioner's property. That 731,855 feet of the timber in excess of the 2,005,745 the defendant represented had been cut, was cut, removed and manufactured into lumber and was worth at the time and place of the filing of this suit $115.00 per thousand feet or a total of $84,866.77. That by reason of the manner and way in which the timber was cut and removed from plaintiff's property he is entitled to recover the full value of the timber at the time and place of suit without deduction for labor or expense. The 60,470 feet of the timber in excess of the 2,005,745 feet defendant represented had been cut, was cut and left in the woods by the defendant and was worth at the time and place of the suit $30 per thousand or a total of $1,814.10. By reason and manner and way in which the timber was cut from plaintiff's property, petitioner is entitled to recover full value of the logs at the time and place of this suit without deduction of labor and expense.
Various demurrers, general and special, were filed to the petition as amended which were overruled by the trial judge. The case is before this court on exceptions to such rulings.
T. E. Duncan, Robert W. Williams, contra.
Sims & Lewis, George E. Sims, Jr., James R. Lewis, for plaintiff in error.
DECIDED MAY 27, 1964.
Friday May 22 21:48 EDT


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