This is the second appeal in this cause, and the timber contract was construed and most of the legal questions settled in the first opinion. 203 Ala. 476, 83 So. 569.
Upon the second trial the gum trees or saplings were eliminated, and the plaintiff's claim for a recovery was confined to the pine saplings cut by the defendant under the size covered in the sale contract and not located within the bounds of the right of way as authorized and provided for in said contract. The complaint contained many counts, including the statutory penalty for cutting trees, trover for the conversion of plaintiff's timber or saplings, and trespass quare clausum fregit. There was verdict and judgment for the plaintiff for $2.50, and, being dissatisfied, he prosecuted this appeal.
The verdict, being for only $2.50, negatives a finding by the jury for plaintiff under the counts for the statutory penalty which fixes the amount of recovery at $10 per tree. Therefore the verdict can only be referable to the other counts, and, as the plaintiff recovered a judgment under said other counts, or one of them, not specified in the verdict, he could only complain of errors that may have occurred affecting his right to recover under the statutory counts, or of those which may have affected the amount of his recovery under the counts upon which he did recover.
As we understand the opinion upon former appeal, it does not attempt to affirmatively hold that the defendant was liable for the statutory penalty for cutting the pine saplings not within the right of way and not within the contract if the cutting was done without the consent of the plaintiff. The court merely held that the defendant was liable for cutting said saplings without the consent of the plaintiff. Nor did the court in the former opinion hold that it was not permissible for the defendant to show that the saplings were left on the plaintiff's premises and used as a causeway for making or improving a road on the plaintiff's land. The fact that the saplings were not removed from the land and were used for the benefit and improvement of same was clearly admissible as bearing upon the question of a conversion of the plaintiff's property after severance from the land and the quantum of damages, also under the trespass counts to negative or mitigate the damages to the freehold. True, the trial court confined this evidence to the conversion counts, but that is a ruling of which the defendant, and not the plaintiff, can complain.
We cannot reverse the trial court for not permitting in evidence certain remarks of defendant's agent "John Watts" expressive of his opinion as to the effect the cutting of the pine saplings would produce upon the plaintiff's mind. Conceding, without deciding, that said remark was a part of the res gestæ and was not offensive to the rule against the declaration of agents as to past transactions, etc.: In the first place, this was the mere opinion of John Watts, and unaccompanied by any facts or declarations explaining or elucidating same. We cannot see the relevancy of same. Moreover, if it be construed as a consciousness or appreciation on the part of Watts that the plaintiff had not consented to the cutting or had objected to same or would object, the plaintiff cannot complain of the exclusion of same upon this theory of the case, as the jury returned a verdict for him, thus, in effect, finding that he had not consented to the cutting, as the trial court had instructed the jury that, if they found that the plaintiff consented to the cutting, he could not recover at all. On the other hand, the fact that Watts may have thought that plaintiff would "raise sand" about the cutting could have no material bearing upon the defendant's liability under *Page 647 the statutory penalty count. If the plaintiff's act in directing the cutting was not knowingly and willfully done and without the consent of the plaintiff, he was not liable for the penalty, notwithstanding the circumstances of the cutting may have been such as to render him liable for punitive as well as actual damages for the acts and conduct of his servants. In other words, if the defendant entertained the honest belief that he had the right to cut and use the saplings for the construction of a roadway over the land, which said roadway was authorized by the contract, and which was a question for the jury, it mattered not whether the plaintiff consented to the cutting or not, he was not liable under section 6035 of the Code of 1907. Ellard v. Goodall, 203 Ala. 476, 83 So. 568; Glenn v. Adams, 129 Ala. 189, 29 So. 189; Russell v. Irby,13 Ala. 131. True, the defendant was charged with knowledge of the law, and a mistaken opinion on his part that his contract authorized him to use these saplings upon the roadway would not relieve him from legal liability, or perhaps punitive damages under certain circumstances, but if he entertained an honest belief, in the opinion of the jury, that he was asserting a legal right, his conduct would not amount to such a willful or knowing cutting as to penalize his conduct under the statute.
There was no error in permitting the timber contract in evidence, as it had a material bearing upon the rights and conduct of the parties. True, we held upon the former appeal that the contract did not embrace the pine saplings now involved, but the entry upon the land and the cutting of the timber thereunder was so connected with the acts complained of as to make the contract admissible as an exponent of the motive and intent which accompanied the alleged wrong and was a factor in determining whether the defendant entertained an honest belief that he had the right to cut the saplings in question and was or was not liable for the statutory penalty or whether or not his conduct was an aggravated, rather than an ordinary, trespass which carried punitive damages under the trespass counts.
The appellant makes quite an extended criticism of charge 4, given for the defendant, upon the theory that it was abstract or misleading, in that there was no consent, or, if there was, the undisputed evidence showed that the plaintiff recanted and so notified the defendant's agent before the cutting of the saplings in question. It is sufficient to say that the charge was not abstract, as there was evidence of a consent, and, if it was misleading for not negativing a subsequent withdrawal of the consent, this would not necessarily render the giving of same reversible error, as the misleading effect could have been removed by a counter explanatory charge. Moreover, if it be conceded that said charge was erroneously given, it was error without injury, as the jury found for the plaintiff, and, in effect, found that he had not consented to the cutting. This comment is also applicable to defendant's given charge 6, which is practically a duplicate of charge 4, above considered.
There was no error in refusing the plaintiff's requested charges 4 and 11. If not otherwise faulty, they invade the province of the jury by requiring a verdict for the plaintiff for the statutory penalty if he did not consent or withdraw his consent before the saplings in question were cut, and, as above laid down in this opinion, it was a question for the jury to determine whether or not the defendant was liable for the statutory penalty notwithstanding the plaintiff did not consent to the cutting.
There was no error in refusing the plaintiff's requested charge 12. It is involved and meaningless. On the other hand, should we omit the surplus "that," it would be an affirmative instruction that there was no consent to the cutting in 1917, and we are not prepared to say that it should have been given. But, apart from this, its refusal was harmless, as the jury, in effect, found that there was no consent.
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.