#### Ehrmantrout and another, Respondents, vs. McMahon, Appellant.

*November 7*

November *25, 1890.*

*Logs and timber: Wrongful cutting: Pleading: Ownership: Offer of judgment: Appeal: Exceptions: Nonsuit: Partnership.*

1. In an action for the wrongful cutting of timber, an averment of the complaint that the acts were done “ on the land of the plaintiffs,” is a sufficient allegation of ownership.

2. In such action an offer of judgment (under sec. 4269, B. S.) is in the nature of a pleading and becomes part of the record without a bill of exceptions.

3. In denying a motion for a nonsuit, the court said: “ I think there is a *prima f acie*case here, and it is for the jury to pass upon. In view of the fact that the defendant has already made a tender, I think I ought not to grant this nonsuit. The motion for a nonsuit is denied.” *Held,*that tins was equivalent to an order denying the motion, with the reason therefor embodied in the order, and that an exception went to the whole thereof.

4. It was not error thus to refer to the tender as a reason for denying the motion, although in the presence of the jury.

*1395. The evidence tending to show that the timber was cut by the defendant’s partner within the scope of the partnership business, and the quantity and value of the timber cut, the nonsuit was properly refused. '

APPEAL from tbe Circuit Court for *Ashland*County.

Action to recover damages for tbe wrongful cutting and conversion of timber. Tbe facts will sufficiently appear from tbe opinion. There was a verdict for tbe plaintiffs, assessing tbeir damages at §209, and from tbe judgment tbereon tbe defendant appealed.

For tbe appellant there was a brief by Lamorew, *Gleason, Shea da*Wright, and oral argument by *Geo. F. Merrill.*

For tbe respondents there was a brief by *Sleight da Foster,*and oral argument by *liiehard Sleight.*

OetoN, J.

This action is brought against the defendant for cutting timber on tbe land of tbe plaintiffs and converting tbe same to bis own use.

Tbe plaintiffs proved tbeir ownership of tbe land by a patent from tbe United States. Tbe defendant objected to this testimony because tbe plaintiffs’ ownership of tbe land is not alleged in tbe complaint. The plaintiffs aver the acts done on “ tbe land of tbe plaintiffs.” That was sufficient.

Tbe plaintiffs introduced testimony which tended to prove that tbe defendant and one Loveburg were in partnership at tbe time in cutting timber upon a forty-acre tract of land adjoining tbe land of tbe plaintiffs, and shipping tbe same, and that said Loveburg did tbe cutting on tbe land' of tbe plaintiffs, probably by mistake, and tbe timber so cut on tbe land of tbe plaintiffs was removed therefrom, and that said timber was about 44,000 feet and worth about §4.50 per thousand. Tbe witness James Guest testified, in substance, that tbe defendant employed him to go *140upon the said land of the plaintiffs and estimate the timber so out, and that he did so, and estimated the same at 44,000 feet.

On this case so made by the plaintiffs, the defendant moved for a nonsuit, and the court, in overruling the motion, said: “ I think there is a *prima fade*case here, and it is for the jury to pass upon it. In view of the fact that the defendant has already made a tender, I think I ought not to grant this nonsuit. The motion for a nonsuit is denied.” The defendant excepted.

The learned counsel of the appellant contends that the exception relates'to this remark of the court in relation to the tender of the defendant as well as to the denial of the motion for a nonsuit. The learned counsel of the respondents contends that the exception is only to the order denying the motion for the nonsuit. We think that the ruling of the court on the motion for a nonsuit is equivalent to an order denying the motion for a nonsuit, with the reason of the court for denying the same embodied in the order, and that the exception goes to the whole thereof.

The learned counsel of the appellant complains that this remark of the court, or reason given, was unwarranted and improper, and influenced the jury against the defendant. The learned counsel of the respondents appear also to doubt whether any such tender was made, as none is found in the bill of exceptions. A tender is not required to be preserved in a bill of exceptions. It is a pleading and a part of the record. There is on file, and among the papers in the case, an affidavit of the defendant, stating substantially that he was not aware that Loyeburg cut any timber on plaintiffs’ land, and that if he did so cut timber on their land it was without his knowledge and a mistake. This affidavit is followed by a written tender of the defendant, also on file, stating substantially that if he cut any timber on plaintiffs’ *141land it was by mistake, and tendering to the plaintiffs a judgment for 41,000 feet of timber at fifty cents per thousand, making the sum of $22, and costs. These papers are very informal, and so badly written that it was very difficult to read them, but this .is evidently the substance thereof. These papers appear to have been filed pursuant to the terms of sec. 1269, E. S., which provide for reducing the damages for the cutting of timber on the land of the plaintiff by mistake to the lowest amount. There have been so many changes of counsel in the. case that this tender appears to have been overlooked, and it cuts no figure in the case, either on trial or argument in this court. If, however, it is a substantial compliance with the statute,— and it appears to be so, — it justified the court in giving it as at least one reason why a nonsuit should not be granted.

The evidence tended strongly to show that the timber was cut by Loveburg, the partner of the defendant, and within the scope of their partnership business, and that the timber so cut amounted to 41,000 feet of the value of $1.50 per thousand. The defendant concerned himself about the cutting sufficiently to employ a man to go upon the ground and estimate the timber that had been so cut, from the stumpage. The nonsuit was properly refused. The testimony on behalf of the defendant explained the fact of his sending a man on the land to measure or estimate the timber cut, by his having heard that he was charged with cutting it, and wished to know the amount, with a view of settling it with the plaintiffs. The defendant testified that he neither directed, advised, nor consented to the cutting, and also that he and the said Loveburg were partners in getting out the timber on their own land adjoining. The testimony makes a very strong case for the plaintiffs’ recovery in the action. The learned counsel on either side have not thought it necessary to cite any authorities applicable to the main questions in the case, and no authorities are *142necessary where tbe liability of the defendant is so clear and unquestionable on the facts proved and the reasonable inferences therefrom.

*By the*Court.— The judgment of the circuit court is affirmed.