#### Cook Land, Construction & Producing Company, Respondent, vs. Oconto Company, Appellant.

*January 10*

January 28, *1908.*

*Logs and timber: Wrongful cutting: Statutory damages: Good, faith: Trial: Special verdict: Inconsistent answers.*

1. In an action for wrongfully cutting timber, where under sec. 4269, Stats. (1898), the defendant is only liable for actual damages if the cutting was done in good faith, it is not error to submit questions of a special verdict, bearing on the question of good faith, in substantially the words of the proviso of such section.

2. In an action for wrongfully cutting timber, where under sec. 4269, Stats. (1898), the defendant is only liable for actual damages if the cutting was done in good faith, the jury in answer to one question of the special verdict found that the defendant in good faith cut and removed the timber from the lands believing its title to he valid, and in answer to another question found that at or before the cutting and removal the defendant was notified of the facts upon which the title under which plaintiff claimed was based and which rendered the defendant’s 'title invalid. It was conceded that part, if not all, of the timber was removed after such notice was given. *Held,*that the answers were inconsistent, necessitating a reversal of the judgment.

Appeal from a judgment of the circuit court for Oconto county: James O’Neill, Judge.

*Reversed.*

This is an appeal from a judgment in an action for trespass in which statutory damages were awarded. The respondent claimed title to the land from which the timber was *427cut by tbe appellant. Tbe appellant admitted tbe cutting and removing of tbe timber, but denied tbe plaintiff’s title and that tbe amount cut was as alleged in tbe complaint. Tbe appellant then set up as a defense that tbe timber was cut and removed in good faith and without notice of adverse claim, and consequently, if liable at all, its liability was limited to actual damages, under sec. 4269, Stats. (1898). Respondent’s title was based upon tax deeds issued upon sales of 1879, 1880, 1881, and 1882, and from mesne conveyances passing through Mrs. Spies and one Jacob Spies, its immediate grantor. By a bill of sale dated February 27, 1900, executed by William Chase, tbe ostensible owner, tbe appellant acquired tbe right to cut tbe timber from tbe land described and other lands. Upon this bill of sale there was a pencil memorandum, written by a former employee of tbe appellant, as follows:

“Jacob Spies, Jr., served verbal notice January 8, 1903, that be owned tbe N. E. N. E. and N. E. S. W. of section 30-30-19, included in tbe within bill of sale.”

Tbe appellant did not successfully attack the title of tbe respondent, and upon tbe trial tbe issues were tbe amount and value of tbe timber removed and the value of tbe manufactured product and whether tbe timber was cut in good faith within tbe meaning of sec. 4269. This would determine whether tbe recovery should be tbe actual damage sustained by reason of such cutting or statutory damages under sec. 4269, viz,, tbe market value of tbe manufactured product while in tbe bands of tbe trespasser.

Tbe case was submitted to tbe jury in tbe form of a special verdict. By tbe answer to tbe first question tbe jury found that the stumpage value of tbe timber cut by appellant from tbe N. E. of tbe S. W. ¿ at tbe time it was cut was $754.74; by tbe answer to tbe second question that tbe stumpage value of tbe timber so cut from tbe N. E. ¿ of tbe N. E. J was $816.73; by tbe answer to tbe third question that tbe mar-*428bet value of tbe lumber manufactured from tbe timber so cut on tbe first description while in appellant’s possession was $4,148.81; by the answer to tbe fourth question that tbe market value of tbe lumber manufactured from tbe timber so cut from tbe second description while in appellant’s possession was $3,603.01; by answer to tbe sixth question that tbe appellant in good faith entered upon tbe land under such title believing tbe same to be valid. Tbe seventh and eighth questions and answers are as follows:

“(7) Did tbe defendant in good faith cut and remove such timber from tbe lands believing such title to be valid? *4. Yes.

“(8) Was Ellis, tbe superintendent of tbe defendant company, notified about tbe month of January, 1903, of tbe facts upon which Mrs. Spies’s title was based and which rendered tbe title of tbe *Oconto Company*invalid and that Mrs. Spies claimed tbe title to tbe lands in question? *A.*Yes.”

Counsel for respondent moved to change tbe answer to question No. *1*from “Yes” to “No” and for judgment on the verdict. Appellant moved to change tbe answer to tbe eighth question from “Yes” to “No” or to set aside tbe verdict and grant a new trial, setting forth, among other reasons, that tbe answers in tbe special verdict were inconsistent. Tbe court denied «both motions, holding that tbe answers to tbe several questions were not inconsistent, and directed judgment for tbe respondent for tbe amount of statutory damages, being $8,351.82, and costs. From this judgment tbe appeal is taken. Other pertinent facts are referred to in tbe opinion.

Eor tbe appellant there were briefs by *Gill é*Chase, attorneys, and *Spooner '& Ellis,*of counsel, and oral argument by *Fred C. Ellis.*

Eor tbe respondent there was a brief signed by *Greene, Fairchild, North &*Parker, of counsel, and *V. J. O’Kelliher,*attorney, and oral argument by *FI. 0. Fairchild.*

*429BashKORI), J.

The question most strenuously urged upon the attention of tbe court relates to tbe inconsistency of tbe answers of tbe jury to questions No. *1*and No: 8. These questions both involved tbe good faitb of tbo appellant in cutting and removing tbe timber. Tbe answer to tbe seventh question finds that tbe appellant in good faitb cut and removed such timber believing bis title to be valid. Tbe eighth question presents in a special form tbe same controverted question, and in tbe answer thereto tbe jury finds that tbe appellant was notified in January, 1903, of tbe facts upon which tbe adverse title was based and which rendered appellant’s title invalid. It is conceded that part, if not all, of tbe timber was removed after such notice was given, although part, if not all, of tbe timber bad been cut prior to that date. Counsel for both parties at tbe time tbe verdict was rendered deemed tbe answers to tbe questions inconsistent, as is indicated by tbe motions to change tbe answers in tbe manner already stated. The court denied respondent’s motion to change the answer to question No. I from “Yes” to “No,” and there was no exception to this ruling; and denied tbe appellant’s motion to change tbe answer to question No. 8 from “Yes” to “No,” to which proper exception was taken. In passing upon these motions tbe court stated:

> “That tbe eighth question and its answer determine the rights of tbe parties. There is not necessarily a conflict between tbe seventh and eighth questions and tbe answers thereto.”

Questions No: 5, No: 6, and No. Y were submitted substantially in tbe words of tbe statute as found in the proviso of sec. 4269. This form of submission has been approved by this court. *Byington v. Merrill,*112 Wis. 211, 88 N. W. 26. Tbe seventh question was therefore proper, and its answer also determines tbe rights of tbe parties if the eighth question and answer are stricken out.

*430Counsel for respondent contends that the answer to- the seventh question was made by the jury in accordance with the instruction given by the court, which was erroneous and misleading. In the charge relating to the seventh question the jury were told, in substance, that if they found that the appellant was informed of the nature of the adverse claim to the land and *was warned not to cut the timber,*and he went, nevertheless, and cut and removed the timber, then they should find that the appellant did not act in good faith. Respondent’s counsel insist that the jury acted upon the instruction in answering the seventh question in the affirmative, and further contend that the language of the charge as italicized is erroneous and misleading. The contention may be correct, but it is to be noted that there was no exception to the submission of the seventh question or to the charge of the court-relating to the warning given to the defendant; nor is there any exception to the refusal of the court to change the answer to question No. 7. So far as respondent is concerned, the seventh question was properly submitted under proper instructions and properly stands in the record, and full effect must be given to the answer. After the verdict was rendered respondent’s counsel did not move to strike out the seventh question and answer, but his motion was to change the answer, which must have been made upon the assumption that the seventh question was properly submitted and under proper instructions.

Moreover, it is to be noted that the court in the charge given with respect to the seventh question says: “Ton will carefully apply these instructions in answering each question in which good faith is involvedand adds in the same connection :

> “The burden is upon the defendant to prove that the cutting and removal was in good faith. So, whether Ellis in January, 1903, was notified of the facts upon which Mrs. Spies’s title was based and showing the invalidity of defend-. ant’s title is important on this question whether the cutting *431and removal of tbe timber was in good faitb, believing the title was valid. The jury will here apply the rules given in other portions of the charge on the subject of good faith.”

And further:

> “The instructions which the court will give you under the eighth question involving an inquiry as to whether Ellis was informed of the facts upon which Mrs. Spies’s title was founded will be pertinent in answering the seventh question.”

It appears that the jury had some difficulty in arriving at the answers to the last two questions and came in for further instructions. The court then said, “Now, gentlemen, the inquiry involved in the eighth question is very important in answering the seventh question,” again emphasizing the fact that the appellant’s good faith was involved in the answers to these questions. It is clear upon this record that each of these questions embraced the same issuable fact and that the answers are in direct conflict. We must hold, therefore, that the answers to questions No. 7 and No. 8 are inconsistent. This conclusion necessitates a reversal of the judgment and obviates the necessity of a consideration of the alleged inconsistencies of the answers to the first four questions.

*By the Oourt.*— The judgment is reversed, and the cause remanded for a new trial