Acree v. Bufford

delivered the opinion of the court.

Bufford sued Aeree in replevin for'twenty pieces of square timber valued at $8 per stick, and recovered $160 as the value of the timber, $40 as attorney’s fee, and $34 for lost time— making $234. The suit was brought originally against White, who was looking after the timber interests of Aeree in Jackson county, and Aeree, who resided in Alabama, was substituted as defendant. The twenty sticks of square timber were cut from lands bought by Aeree from a former owner, somewhere about the hme of purchase, and White, finding the sticks of timber lying upon the land purchased by Aeree from Vizard, not entirely finished for market, completed the hewing of it, and rafted the timber to Moss Point, where it was seized by *569plaintiff. Subsequent to tbe suing out of tbe writ of replevin, the deed of purchase of said land by Aeree was annulled by a decree of the chancery court, after which Aeree no longer claimed a recovery of said timber, but sought to shield himself from punitory damages claimed against him, and to reduce the value of said timber by the labor bestowed upon it in fitting it for, and floating it to, market. For the purpose of showing his good faith in preparing said twenty sticks of timber for market, and as a basis of his recovery for the labor bestowed upon them for that purpose, and of conveying it to market, he offered in evidence his deed to the land from which the timber was cut, and upon which it was lying when it was taken charge of by his agent, White, and it was rejected. We think his deed of conveyance was admissible in evidence to show his good faith in taking charge of said timber, and of preparing and putting if in market, although subsequently declared void upon grounds not affecting the integrity of the motives of Aeree in máking said claim. We are of opinion that there is not in the case such evidence of willful wrong or reckless misconduct on the part of Aeree as to justify the infliction of exemplary damages against him, and that the instruction of the court plaeing their infliction within the discretion of the jury is erroneous. Upon the authority of Railroad Co. v. Le Blanc, 74 Miss., 626, 647 (21 So., 748), we think that Aeree should have been permitted to have shown, in reduction of a recovery against him, the cost of the labor put upon the timber in preparing it for market and in floating or rafting it to Moss Point, where it was seized in replevin by the officer.

Reversed and remanded.