
    (101 So. 794)
    No. 24571.
    CLOUD v. WARNER.
    (April 30, 1924.
    On Rehearing, Nov. 3, 1924.)
    
      (Syllabus by Editorial Staff.)
    
    1. Appeal and error <&wkey;IOI 1 (1) — 'Trial court’s finding on conflicting evenly balanced evidence not disturbed.
    Trial court’s finding on conflicting evidence that oral contract between plaintiff and defendant authorized defendant to cut only so much timber, and during such period as plaintiff might require, will not be disturbed, where evidence was evenly balanced.
    On Rehearing.
    2. Logs and logging &wkey;>8(3) — Defendant, though not justified in cutting timber after notice to stop, held entitled to recover for timber thereafter cut.
    Where plaintiff received benefit of all timber cut and hauled for him by defendant, including that cut after defendant was notified to stop cutting, held, that, though defendant was not justified in cutting after notice to quit, he was entitled to' recover for lumber so cut.
    3. Logs and logging <&wkey;26(2) — Cut timber for which plaintiff owed defendant held subject to privilege.
    Timber, for cutting of which plaintiff owed defendant, held subject to privilege accorded by Act No. 208 of 1908.
    
      4. Costs &wkey;>237— Judgment requiring defendant to pay costs of lower court, though he was partially successful on appeal, held proper.
    In suit to restrain defendant from continuing to cut timber under parol contract, in which suit defendant set up a reconventional demand, where plaintiff was successful, but on appeal defendant succeeded partially on his reconventional demand, held, that judgment requiring defendant to pay costs of lower court was proper, where most of costs were occasioned in de'termining terms of contract.
    Appeal from Seventh Judicial District Court, Parish of Richland; John R. McIntosh, Judge.
    Suit by John V. Cloud against E. E. Warner, who interposed a reconventional demand. Erom a judgment for plaintiff, and rejecting the reconventional demand, defendant appeals.
    Judgment amended, so as to allow defendant partial recovery on his re-conventional demand.
    Hudson, Potts, Bernstein & Sholars and George Gunby, all of Monroe, for appel-lant.
    Ellis & Ellis, of Rayville, and John St.' Paul, Jr., of New Orleans, for appellee.
    By Division B composed of Justices DAW-' KINS, LAND, and LECHE.
   DAWKINS, J.

Plaintiff and his associates were the owners of 1,422 acres of timber in the parish of Richland, and employed defendant to cut and deliver same upon their tramroad at the price of $10 per thousand feet. This arrangement was made about April 1, 1920, and defendant entered upon the work and had cut something in excess of 800,000 feet, when, on August 24th of the same year, plaintiff instructed him to cease cutting. Having failed to do so, this suit was filed and an injunction issued to restrain further cutting; plaintiff alleging that defendant was employed for such time only as might be desired to continue.

Defendant responded by averring that he had been engaged to cut all the timber upon said lands, amounting to some several million feet; that plaintiff had breached the contract; that respondent was entitled to recover $51,000 as contemplated profits upbn the uncut timber, $1,400 as the value of timber already cut, but not paid for, and $10,000 additional as damages for the alleged false arrest and imprisonment of the defendant. Respondent also provisionally seized all of the timber which had been cut, claiming a privilege thereon for the balance due.

After a trial upon the merits, the court below perpetuated the injunction, dissolved the provisional seizure, and rejected defendant’s reconventional demand, all at the latter’s cost.

Defendant appealed.

Opinion.

The.case has been submitted on brief and without oral argument. It turns mainly upon questions of fact, as will be seen from the following excerpt from appellant’s brief, to wit:

“The first issue presented to the court for determination is as to the existence of a contract between Cloud and Warner for the logging of all the timber owned by Cloud and Ms partners on the 1,400-acre tract.
“The contract was an oral one. The testimony of the parties differs both as to the subject-matter and as to the interpretation thereof. Neither one could state exactly what was said at the time the contract was made, nor was that necessary, but each gave his testimony as the substance of the terms of the contract. One is contradictory of the other. The court must decide which one of these parties testified truthfully and which one did not. And, while the interpretation of the contract, having ascertained the facts, devolves upon the court, it must look to the understanding of the parties, their subsequent actions and admissions, and such other circumstances as will enable it to ascertain the true intent of the parties.”

The -lower court evidently reached the conclusion that the agreement was, as contended by plaintiff; i. e., that defendant was to cut only .so much timber and during such period of time as plaintiff might require, and that there was no definite contract for cutting the whole tract.

It would serve no good purpose in 'the present case, nor add anything to our jurisprudence, to review at length the voluminous evidence in the record. Suffice it to say that we have reviewed it carefully, and, while it might have been possible to reach a different conclusion, dependent upon the weight to be given to the testimony of witnesses and circumstances of the respective sides, yet, it is so evenly balanced that we do not feel, viewing the cold record, that we would be any surer of doing justice between the parties, if we solved it differently, than we are that the lower court’s views are correct. We shall therefore not disturb its finding. Defendant says that, although it was agreed that he should cut the whole tract at $10 per thousand, there was no fixed time within which this was to be done; nor any definite quantity to be delivered at any particular time; that the timber was located in a low, swampy territory, and, if the weather continued bad over a great period of time, he still had the right to go ahead at the same price, even though it required a number of years or an indefinite time to complete the job. On the other hand, he admits that-plaintiff first exacted a bond to insure the prompt and efficient cutting of the timber, but that he refused to give it, because of the conditions just mentioned; that is, because of the swampy nature of the locality in which the timber was situated. He also admits and it is conclusively shown that he wanted $1 per thousand more for cutting a tract of 160 acres that was more remotely situated than the rest. At the same time, he contends that he would not have gone to the great expense of moving his camp, teams, etc., upon the ground, if he was to be in the position that plaintiff could dispense with his services at any time; and this, of course sounds plausible. It whs also shown by one or more witnesses that plaintiff was heard to say that defendant had the right to cut the whole tract; but this is not altogether inconsistent with the idea that plaintiff might still have the option of discontinuing if his interest required. He could easily have intended to permit defendant to cut all the timber, if conditions made it attractive. But the crucial point is as to whether plaintiff bound himself unconditionally as defendant contends. Our view is that the record does not sustain that conclusion with the degree of certainty which the law requires, especially since the lower judge, who saw, heard, and perhaps knew the parties, has found to the contrary.

The evidence is not as clear as it might he upon the point as to how much timber defendant cut and delivered after August 14,. 1920 (it appearing, to be conceded, that none had been paid for after that, date); but we think plaintiff has practically conceded in his testimony that about 131,000. so remained unpaid for; he having said there were about 870,000 feet, and that he had paid for only 739,000. Hence we think defendant should recover in reconvention for this difference.

For the reasons assigned, the judgment appealed from is amended by decreeing that defendant recover of plaintiff in reconvention the sum of $1,310 as the balance due on timber cut and delivered; his lien and privilege thereon are recognized and the provisional seizure to this extent is maintained, plaintiff to pay costs of this appeal, and those of the lower court to be paid by defendant.

On Rehearing.

THOMPSON, J.

There are three questions presented for consideration; all other issues being foreclosed by the opinion and decree heretofore handed down.

The plaintiffs in his application for rehearing contends: (1) That the court erred in allowing defendant’s reeonventional demand to the extent of $1,310; and (2) in recognizing a lien and privilege on the timber seized.

A reconsideration -of the testimony has served only to convince us of the correctness of our former conclusion. The plaintiff in his second supplemental petition admits that the defendant had cut and hauled 870,-000 feet of timber, and that he had paid defendant for only 739,216. The admitted contract price was $10 per 1,000 feet.

The last settlement for timber was made on August 13th, and the injunction was sued out on August 28, 1920. The plaintiff notified the defendant to cease • cutting on August 24th, and, while admitting liability for the timber cut between August 13th and August 24th, the plaintiff contends that he is not liable for the amount cut after the notice of August 24th.

In his testimony on page 188, notes of evidence, the plaintiff testified:

“Q. Did you owe Mr. Warner for cutting and hauling any logs between the date of August 14th and the date on which you notified him to stop cutting?
“A. Yes, sir.
“Q. You know what that was?
“A. No; because I have not made any scale on that.
“Q. Have you ever paid him for that?
“A. No, sir.
“Q. What’s the reason why you didn’t pay him for that?
“A. I didn’t have any way of identifying that from that he cut after he was notified to stop.”

The only reason, as appears from the plaintiff’s own testimony, why he ,-did not pay for the timber cut after the last settlement is that the defendant had cut some logs after he was notified to stop, and mingled them with those for which plaintiff owed. The plaintiff received and got the benefit of all the timber cut and hauled, including that cut after the defendant was notified ; and there is no sufficient legal reason suggested why he should not pay for what he has received, even though the defendant was not legally- justified in ignoring the notice to quit cutting.

According to the defendant’s testimony (pp. 147 and 148), the plaintiff would owe him more than the amount we have allowed. We prefer, however, as the safer rule, to base our conclusion on the plaintiff’s testimony and judicial admission.

The timber seized by the defendant was that cut and hauled under his contract with the plaintiff, except the small amount cut after plaintiff had terminated the contract by notice. This timber was subject to the privilege accorded by Act 208 of 1908.

In his application for rehearing the defendant complains that he was adjudged to pay all the costs of the lower court, and he contends that, as both parties partially succeeded, each party should bear his own costs incurred in the lower court, or that such costs should be equally divided. It is true that the defendant was partially successful on his reeonventional demand, but most of the costs of the lower court were occasioned in the contest as to the nature and terms of the contract. In that contest the plaintiff was successful, and his injunction was sustained. The judgment as to costs, we think, does substantial justice, and we have concluded to leave it as it is.

The judgment and decree heretofore rendered is reinstated and made the final judgment of this court.  