ERROR to the Circuit Court for the District of Maryland; the case, as stated in the brief of counsel, and assumed by this court, being in substance thus:
Dubois & Lowe brought trover against Tome, Shure & Abbott to recover damages for the conversion by them of certain saw-logs, and certain planks, which Dubois & Lowe alleged to be their property.
At the trial of the cause, evidence was offered on the part of the plaintiffs, that on September 30th, 1861, several booms on the Susquehanna River were carried away by a freshet, and that a large quantity of logs for lumber were swept down the river; that telegrams were at once sent to the postmasters at Port Deposit and Havre de Grace, towns on the lower part of the river, requesting them to have the logs caught and saved for the owners, and that under such notices, the defendants caught and saved a quantity of the logs, and at once began to saw them into lumber. Evidence was also offered, that a few days after the freshet, the owners of the logs appointed a committee of three persons to go down the river, and settle with the persons who had saved any portion of the logs, and with full authority to sell the same; that on the 7th or 8th October, 1861, the committee went to the sawmill of the defendants, about seven miles from Havre de Grace, and saw some of the logs there; that the committee offered to sell to the defendants all the logs between Safe Harbor Dam and Havre de Grace, which included the logs then in the possession of defendants, but the parties could not agree at to the terms of sale; that the defendants were then engaged in sawing the logs, and had prior to that time sawed som of them, and that the committee prohibited all further sawing thereof; that they estimated the lumber which had been sawed at from 40,000 to 200,000 feet; that they made several visits to the mill of the defendants, and on their last visit, which was in December, 1861, and was for the purpose of ascertaining and measuring the whole amount, there were, in their judgment and by their measurement, 400,000 feet of sawed lumber, and 100,000 feet in logs. Evidence was also offered, that on the 26th October, 1861, the plaintiffs bought all of the logs from Safe Harbor to Havre de Grace from the committee, and settled with them therefor; that on the next day the plaintiffs gave notice to Tome (one of the defendants) of the purchase, and he having refused to pay them for the logs which had been sawed, they demanded possession of all the lumber sawed and unsawed in the defendants' possession, and prohibited the sawing of any more, but he denied their ownership, alleging that the logs and lumber had not been scaled and delivered to them; and that after the logs had been scaled, and the quantity of lumber estimated by the committee in December, 1861, the plaintiffs made another application to the same defendant without success, he referring them to Shure (a co-defendant in this case), of whom they had made repeated demands, and received repeated refusals. The plaintiffs also gave evidence, that the logs when sawed, were worth from $13 to $16 per thousand feet.
On the part of the defendants, evidence was offered that after the receipt of the notices by telegraph, they commenced to save the logs as they were brought down by the freshet, and that with the expectation of becoming the purchasers of the logs, they sawed and converted the same into lumber as fast as they were saved, and directed the foreman at their saw-mill to keep an account of the same; that they had converted about twenty-two logs into lumber, when the committee came to the mill, and objected to the manner of keeping the account, and gave directions as to the keeping of the same in a different manner; that of the logs when so sawed into lumber they had sold three canal-boat loads on the 18th and 25th of October, 1861, and received the money therefor, at the value of $11 per thousand feet; that about 780 logs were the whole amount so recovered and sawed by them, and that from the moment they heard of the sale of the logs by the committee to the plaintiffs, they ceased either to catch or saw the logs; that five of the logs sawed would make a thousand feet of lumber; and that it was worth $3 per thousand to saw it, and $5 per thousand to save the logs. The defendants also proved, that when called on by the committee after they had made their final estimate and measurement of the lumber, for an account of the logs so caught and manufactured into lumber, they expressed a willingness to furnish such account, and to pay therefor to the committee, for themselves or for the owners, but would not furnish an account for nor settle with the plaintiffs, whom they refused to know in the matter.
