#### Nelson and another, Respondents, vs. Campbell & Cameron Company, Appellant.

*March 21*

April *17, 1906.*

*Judgment: Former recovery: Extent: Amendment of pleading: Damages for cutting timber.*

1. Both court and counsel^ having tried the case on the theory that the question of estoppel by former recovery was properly within the general issue raised by the pleadings, on appeal the answer is regarded as amended accordingly.

2. In a former action against one C., plaintiffs demanded damages for the cutting and removal of all the *timber from*certain land, and it was undisputed that all the timber had been removed by a corporation to which C., claiming to be the owner of the land, had sold the timber. The case was submitted to the jury on the theory that, if plaintiffs were entitled to recover, they were entitled to recover for all the timber shown to have been taken from the land. The jury found for plaintiffs, assessing the damages, and plaintiffs had judgment therefor, which was paid. *Held,*that plaintiffs cannot now recover damages from said corporation for timber removed by it before the date of the alleged sale, since full damages for the removal of all the timber were included in the former recovery.

Appeal from a judgment of the circuit court for Waupaca county: Ohas. M. Webb, Circuit Judge.

*Reversed.*

Action to recover damages upon the ground that defendant’s agents and servants cut and removed timber from the plaintiffs’ land, the northwest quarter of the northeast quarter of section 2, township 24, range 12, Waupaca county. Plaintiffs allege that they are now and since 1881 have been the owners of this land, and that defendant’s agents and servants, between the 1st day of December, 1897, and the 3d day of February, 1899, wrongfully cut and removed timber therefrom, to the plaintiffs’ damage. The defendant denies that plaintiffs owned the timber, and denies that its agents and servants cut and removed it as charged.

It appeared upon the trial of the case that plaintiffs, in *83January, 1901, brought an action against one Charles Churchill to recover damages from him for the cutting and removal of the timber from this land, upon the ground that he, acting as owner under a tax deed from Waupaca county, had authorized this defendant to cut and remove the timber from this land. The suit against Mr. Churchill was prosecuted to judgment and resulted in a recovery of damages and costs by the plaintiffs. Such judgment was fully paid and was satisfied by plaintiffs before the commencement of this action. The record of the Churchill case, including the evidence and the court’s charge to the jury, was offered and received in evidence in this ease. From this it appears that Churchill claimed to own this land after 1896 under a tax title from Waupaca county, and as such owner, on February 3, 1899, ■sold to defendant the standing timber- on the land. It also appeared that Churchill did not contest the claim that the defendant in this action, under the authority he had given it, cut and removed the timber from the land. The record and evidence adduced upon the trial of the Churchill case also show that these plaintiffs, in that case, claimed that all of the timber which had been cut and removed from this land had been cut and removed by the defendant’s agents and servants under the authority from Churchill so proven, and that upon the trial of that case they demanded damages in full for the removal of all of the timber, and that the case was submitted by the court to the jury upon the theory that, if they found plaintiffs were entitled to recover, they were entitled to recover the market value of all of the timber shown by the evidence to have been taken from this land. ■ It is now claimed that the recovery in the Churchill case was limited to such -damages as this defendant committed under the bill of sale of the timber dated February 3, 1899, the alleged authority from Churchill.

The trial court submitted the issues .raised by the pleadings in the case to the jury upon the evidence offered, and re*84stricted recovery to whatever timber the jury found under the evidence had been removed by defendant during the winter season of 1897-98. The jury returned a verdict for plaintiffs and awarded damages in the sum of $560. Judgment for this amount and for costs was accordingly entered. This is an appeal from such judgment.

Eor the appellant there was a brief by *Phillips & Hicks,*and oral argument by *F. B. Hides.*

Eor the respondents there was a brief by *H. J. Severson,*attorney, and *McFarland &*Murat, of counsel, and oral argument by *O. D. McFarland.*

Siebeokeb, J.

From the foregoing statement of the case it appears that the plaintiffs claimed the right to recover damages for the removal of the timber from the land owned by them, upon the ground that they had not recovered any damages for such trespass in their action against Churchill theretofore prosecuted to judgment. The charge in the complaint is a general one of trespass for removal of timber from plaintiffs’ land between certain dates. The record of the trial shows that after plaintiffs had offered their evidence, tending to show that defendant had removed timber between the dates as alleged, the defendant then suggested to the court that it would defend upon the ground that the timber for which plaintiffs now sought to recover was, upon the facts adduced in evidence, included in the recovery in the action .against Churchill, and that it had been fully paid for by payment of the plaintiffs’ judgment in that case. At this point in the trial plaintiffs’ counsel admitted payment to them of the judgment in the Churchill case, and informed the court that they did not claim the right to recover damages for the taking of timber from their premises for which recovery was had in the Churchill action, and they called for a ruling of the court to determine the extent of the recovery in the Churchill suit. The court thereupon ruled that the recovery in the Churchill *85case was limited to a recovery for tbe timber removed after February 3, 1899, under tbe pretended authority of Churchill, given by the bill óf sale bearing this date, and that the damages now claimed were not included in that recovery. This ruling was based upon the record and the evidence in the Churchill case, which had then been offered and was regarded as in evidence in this case. Plaintiffs’ position before the court upon the question involved is fully disclosed as admitting that they could not recover for any timber included in their former recovery against Churchill. It was not objected that the question of estoppel by a former recovery could not properly be shown under the general issue raised by the pleadings. Court and counsel treated the subject as properly within the issues and tried the case upon that theory. Under these circumstances we deem it appropriate to regard the answer as amended to that effect. *Gill v.*Rice, 13 Wis. 549.

It remains to be determined whether the court erred in its ruling on this subject. An examination of the record and evidence in the Churchill case shows that the present plaintiffs prosecuted that suit and demanded damages for the removal of all the timber from the land in question. The evidence of both these plaintiffs in that action, as well as that of the 'other witnesses sworn by them, clearly claimed and tended to show that all the timber on the land had been removed by the present defendant under the claim of authority from Churchill, and that Churchill was liable for all the damages plaintiffs had suffered by and on account of such trespass. There appears to have been no dispute upon the trial of that action of the claim made by plaintiffs that the defendant had tahen and removed all of the timber from this land, although Churchill and the present defendant claimed and insisted that it was removed by the latter under purchase of it from Churchill as owner of. the premises. The jury found in that action that Churchill had no right to or interest in the land and that he was liable to the plaintiffs for the damages sus*86tained by tbe removal of tbe timber by tbis defendant under tbe alleged sale. Tbe court submitted tbe question to tbe jury as to wbat amount of damages plaintiffs bad sustained upon tbe plaintiffs’ claim in that regard in tbis prior case. From tbis it results that, since tbe jury found plaintiffs were entitled to a verdict in that action, tbey must be beld to bave assessed- plaintiffs’ total damages in tbe removal of all tbe timber from these premises. Tbis amount bas been paid and accepted by the plaintiffs. To permit a recovery in tbis action, under tbe circumstances, would of necessity result in allowing plaintiffs damages for tbe removal of timber wbicb was included in tbe former judgment. Plaintiffs’ counsel frankly conceded at tbe trial in tbe lower court and in argument on appeal in tbis court that tbe law would not permit them to recover damages wbicb were included in tbe Churchill case, but it was contended that tbe facts showed that tbe present was not included in tbe former. Tbis contention is not sustained by tbe facts. Tbe record is clear and undisputed that tbe jury in tbe Chur chill case must bave included in their award of damages those now sought to be recovered. Tbe court should bave so ruled upon tbe trial.

*By the Court.*— Judgment reversed, and tbe cause remanded with directions to award judgment for tbe defendant.

Oassoday, C. J., took no part.