The cause of action, as stated in the original complaint and in the three amendments, is based upon
alleged injury to the plaintiff's interests, growing out of the alleged failure of the defendants to discharge their duties, as trustees, under the trusts imposed upon them in the several instruments of writing set out in the complaint.
It is alleged that the contracts of 7 November, 1893; 8 January, 1895; 9 December, 1899, and the other contracts and conveyances supplemental to the one of 9 December, are all to be construed together, and that they disclose a trust on the part of the defendants Archer and McGarry which required them to take immediate possession of the land and cut and market the timber, and with the proceeds pay, first, the expenses and costs of such cutting and marketing the timber, and then apply the balance to the creditors named in the deeds of 1899, and that that not having been done, a breach of their trust (306) has occurred.
Further specific breaches of trust are alleged in the amendments to the complaint, as follows: First, that the defendants Archer and McGarry neglected and failed to prosecute or defend certain civil actions pending in the counties of Graham and Cherokee, involving the title to portions of the land in question, and in neglecting and failing to keep off trespassers and squatters from the land, and preventing them from cutting and removing timber from the same. Second, that they failed and neglected to pay the taxes upon said land to the county of Graham, and suffered the same to be sold for taxes. Third, that, as plaintiff is informed and believes, they have suffered a large number of logs, which had been cut previous to 9 December, 1899, and left upon said land, to remain there, unprotected from the weather, and that the same have decayed and are greatly damaged, if not entirely worthless, to the great damage of the plaintiff. Fourth, that prior to the commencement of this action, as the plaintiff is informed and believes, they, professing to act as trustees, and in violation of the trust imposed upon them, entered into a contract with certain parties in said contract named, whereby they undertook to bind themselves to sell and convey the lands in Graham County, and that, upon information and belief, the amount to be realized from said sale is not one-half the value of said land, and said contract shows that said trustees have in their said negotiations calculated nicely the amount that would be required to pay the claims of the said Archer, and provide for the purchase of the Cooper and Bragg interest, and pay $6,000 to one Creitch, and the balance to be distributed to said trustees and in payment of counsel fees, leaving nothing whatever to the real owners of said land."
The judgment prayed for by the plaintiff is that the defendants
reconvey to the plaintiff his interest in the property mentioned in the complaint; that they be removed from their (307) trusteeship and be restrained and enjoined from any further control of the property, and for such other and further relief as the plaintiff may be entitled to.
The defendants answered and the plaintiff made replication, and his Honor submitted the following issues:
1. Did the defendant Robert N. Archer negligently fail to discharge the duties imposed upon him in respect to the trust property by the memorandum of agreement and deed of trust, dated as of 9 December, 1899, and the deed and agreements supplementary thereto?
2. Did defendant Thomas F. McGarry negligently fail to discharge the duties imposed upon him in respect to the trust property by the memorandum of agreement and deed of trust, dated as of 9 December, 1899, and the deed and agreements supplementary thereto?
3. Was the price at which the said defendants undertook to sell said land in Graham County a fair price for the same?
The record in this case contains nearly six hundred pages. A considerable portion of it has been of no service to the Court, but has served rather to embarrass and perplex us. There are ninety-six exceptions brought up for review, one concerning venue, one concerning a motion to make new parties, fifty-six on matters of evidence, one concerning the issues tendered by the plaintiff, and the remainder in respect to his Honor's charge and his failure to give instructions asked by the plaintiff.
A motion was made by the defendants to remove the case from Cherokee County to Graham County for the convenience of the witnesses, and it was announced by the court that the removal would be made to Graham County. Upon objection being made by the plaintiff his Honor said that in order that a speedy trial might take place he would remove it to either Graham, Macon or Clay, and stated to the plaintiff that he might select either of those counties. Whereupon the (308) plaintiff's counsel said he would "take" Clay County, if he was compelled to choose, and the case was removed to that county. Whatever irregularity there may have been in the proceeding was cured by the action of the plaintiff himself. His Honor had the power under the statute (Code, sec. 195, subsec. 2) to remove the case to Graham for the convenience of the witnesses. The plaintiff, instead of submitting, chose Clay County instead of Graham, and he cannot complain.
The plaintiff, a few days before the trial, served a notice on the defendants that he would move to make Leighton and others,
the would-be purchasers of the land, parties defendant to the action, and before entering upon the trial the plaintiff moved for the order and the same was refused. The matter was discretionary with the court. The plaintiff, when he issued the summons and drew his complaint, knew the relation of those persons whom he sought to make parties to the subject-matter of the suit and their interest in the controversy as well as he did when he made the motion. If the motion had been made by the defendants themselves to become parties the case would have been different.
Exceptions three and four were made to the refusal of his Honor to admit evidence concerning matters which were embraced under the contract of 1893 and 1895. Together with these exceptions we may consider the refusal of his Honor to submit the third issue tendered by the plaintiff, which was in these words: "Did the defendant Robert N. Archer negligently fail and refuse to perform his covenants, obligations, stipulations and duties under the contracts of 1893 and 1895, as the same were consolidated by the contract of 8 January, 1895, in breach of trust contained in last named said contract?" And also that part of his Honor's charge excepted to by plaintiff which in substance was that by the terms of the judgment of Loudon County, Tennessee, the judgment of the (309) Superior Court of Graham County, North Carolina, and the memorandum and agreement and deed of trust of date 9 December, 1899, the contract of November, 1893, and the one of 8 January, 1895, were annulled and merged into the said memorandum and agreement and deed of trust dated 9 December, 1899, and that they should not consider the contracts of 1893 and 1895 in making up their verdict; and that the duties and powers and responsibilities of the defendants, Archer and McGarry, are set forth in the memorandum of agreement and deed of trust of 19 December, 1899, and the supplemental agreements thereto, and these different instruments should be construed together as one instrument in determining the rights of the parties in this action. We think his Honor committed no error either in refusing the evidence, in refusing to give the instruction asked, or in giving the instruction which he did give. The record in the Tennessee and North Carolina suits, and the agreement and trust deed of 9 December, 1899, show upon their face that the ends and objects for which the contracts of 1893 and 1895 were executed were concluded; that they had ended disastrously to all the parties concerned and with a very large debt due to the defendant Archer under the terms of those contracts; that the agreement between the defendants of December,
1899, referred to the litigation concerning the contracts of 1893 and 1895, and the parties, to put an end to all those matters and litigations, stated and fixed the debt due to the defendant Archer at $85,000, and as far as could be done agreed upon the manner and method of payment of that debt by a sale of the property mentioned in the agreement; and the parties in interest, the plaintiff and the others, in December, 1899, undertook to carry out the agreement and memorandum. That part of the property embraced in the contracts of 1893 and 1895, which was conveyed by the agreements and deeds of December, 1899, is dedicated (310) to different purposes entirely from those for which it was used under the contracts of 1893 and 1895. There is not a stipulation in the contracts of 1893 and 1895 like any one in the agreement and deed of 1899; in fact there is nothing left in law or in fact of the contracts of 1893 and 1895.
It was contended, however, for the plaintiff that the contract of 1895 was still in force and to be construed with the other written contracts bearing on the case, because of the last clause of article seven of the memorandum and agreement of December, 1899, reference is made to the contract of 1895. That reference is in these words: "And in case of the nonpayment of the moneys above mentioned to Robert N. Archer, in manner and form as above expressed, the said Robert N. Archer shall, for the space of ninety days after any default, have the option to enforce this instrument or be remitted to his original rights under the contract of 8 January, 1895, and the suits mentioned in the third paragraph hereof, as if this contract had never been made, and said deed just mentioned shall be null and void and all parties shall be returned to their original rights." Now, if that section seven of the memorandum and agreement of December, 1899, had been the only power given in that instrument by which Archer and his co-defendant McGarry could have sold the property mentioned in the agreement for the payment of Archer's debt, then the contract of 1895, together with the suits referred to, would have been in force, and the agreement and deed of trust of December, 1899, would have been void and of no effect. But there is another clause or section in the agreement and memorandum of 1895 which confers upon Archer and McGarry, trustees, the power to sell the property for the payment of Archer's debts and also for the payment of other debts mentioned in the agreement; and the power is in these words: "And the said trustees, Robert N. Archer and (311) Thomas F. McGarry, are also authorized and empowered, at any time, to sell said property or any part thereof, at private sale, at such price and in such manner and
upon such terms and conditions as they deem proper; provided, however, that no such sales shall be made of the whole of said property unless sufficient be realized to satisfy the claims of the several parties herein mentioned, principal and interest, hereinbefore scheduled and set forth."
The reasonable construction of the two distinct powers given to the trustees to make payment of the debts mentioned in the agreement is this: Under section five of the agreement the power was conferred upon both
Archer and McGarry to make sale of the property privately, according to their best judgment, at any time they may see fit during the five years of the life of the agreement; in section seven of the agreement an additional power was given to Archer himself and alone, without the cooperation or even assent of McGarry, the other trustee, to sell publicly at auction, and after advertisement of the sale, the entire property, provided he would do so within ninety days after any default in the several amounts due to him; and further, it was intended by the agreement and memorandum of 1899 that if Archer preferred not to proceed under section seven and sell the property at public auction he should have the option, the privilege, of proceeding under his contract of 1895 and the suits in Loudon County, Tennessee, and Graham County, North Carolina.
Under section seven of the agreement of 1899 Archer had no right to make sale himself for the purpose of paying his debt with the proceeds after ninety days from the time the first default occurred; and he alone made no effort to sell at public sale. He therefore had the option to proceed under his judgments based on the contract of 1895, but he did not do that. He, together with the other trustee, McGarry, proceeded to make the sale privately under article five of the agreement and memorandum. The power, the authority, for (312) Archer and McGarry, when acting together, to make sale of the property privately, under section five of the agreement and memorandum of December, 1899, is not denied in the plaintiff's complaint nor in his replication, but is admitted. The insufficiency of the price agreed to be paid for the property, going to show a breach of trust, is the gravamen of the plaintiff's complaint, and that is clearly to be seen from a reading of the ninth of the plaintiff's tendered issues, viz.: "Was the price at which the said defendants undertook to sell said land in Graham County a full price for the same, as alleged in the defendants' answer?"
The defendants, trustees, Archer and McGarry, having the power to sell the property privately, have entered into an agreement
with certain persons called the Cleveland parties for that purpose. Exception is made by the plaintiff to the terms of that agreement, the contention being that upon its face it is beyond the power of the defendants to make. We have examined it carefully and are of the opinion that the defendants have not exceeded their power in the execution of it.
The fourth exception was to the refusal of the judge to allow a report concerning the property, made by McGarry alone in April, 1900, to be used as evidence against Archer. Clearly the paper was inadmissible against Archer. Archer could not be deposed from his trust because of any conduct on the part of McGarry not known or approved by Archer. His Honor was correct in overruling exceptions five and six, in which his Honor refused to allow the plaintiff to give his reason why he entered into the deed of trust of December, 1899. However, the evidence substantially got in, because, on the question of the value of the timber, his Honor allowed the plaintiff to testify as follows: "It was reported by McGarry that he would get some $250,000 for the standing timber on the 49,000 acres of land, or (313) thereabout, that was originally transferred to Archer, leaving the land and whatever minerals there were in the original owners' hands." A witness, Coburn, was introduced by the plaintiff, who gave testimony tending to show that logs could be cut and floated down the streams in Tennessee to certain mills in that State, operated by the Crosby Lumber Company, the same mills that the defendant Archer had been operating under the contract of 1895. That witness was asked by the defendant on cross-examination if the Crosby Lumber Company did not fail in their operations and that they quit insolvent. The question was a proper one. The plaintiffs were seeking to hold the defendants responsible for not getting out their logs to market under the agreement of 1899, and the defendants had a right to show that those persons who had embarked in that enterprise had failed, as evidence of their good faith; that was the seventh exception. The answer which was in response constituted the eighth exception. The ninth exception was directed to the permitting of a question to be put to an expert witness, Harrell, as to how he spent his time while he was prospecting the property. We see no objection to the question, but the witness made no answer.
Exceptions 10, 22, 23, 24, 25, 26, 27 and 28 refer to lappages of other surveys of land upon those mentioned in the complaint and answer. The contention of the defendants on this question was that the acreage of the land mentioned in the pleadings had been, to a considerable extent, reduced by a discovery of various
lappages of other surveys and tracts of land over those mentioned in the pleadings, and that that fact ought to be considered by the court on the question of the value of the land contracted to be sold by Archer and McGarry to the Cleveland people. A surveyor, acquainted with the land and who had done surveying in reference to these lands and the lappages, was introduced for the purpose of showing these lappages and the extent of them. So far as we can see, the witness (314) testified to nothing except what he had practical knowledge of and definite information about in reference to the lappages. He did not have particular surveys of these lappages, but he had other surveys connected with the adjoining tracts that gave him such information as that he would reasonably make estimates of the lands embraced in the lappages, and that he did. The exceptions are therefore without merit.
Exceptions from eleven to fifteen, inclusive, relate to letters and communications made by McGarry individually to the owners of the property, without the knowledge of Archer. They were not admitted as evidence against Archer, and there was no error in his Honor's ruling.
Exceptions 16, 17, 18, 19, 20, 20a and 20b relate to the records of the suits in Graham County, North Carolina, and in Loudon County, Tennessee. The evidence was properly received. It does not make any difference whether the plaintiff was a party to those suits or not so far as the introduction of the records was concerned in this case, for the memorandum and agreement entered into between the defendants in December, 1899, referred to these suits; and while it was said that the judgments were disputed as to their validity, yet the recital in that memorandum and agreement of December, 1899, after referring to the suits and judgments, further recited: "Now, therefore, in order to settle said matters and all litigation it is hereby mutually agreed as follows: 1. That the amount due to said Robert N. Archer is hereby settled and agreed upon as follows, at the sum of $85,000." The plaintiff in his deed of trust made in December, 1899, pursuant to the memoranda and agreement of the same date, recognized the terms of the memorandum and agreement and the settlement made therein. The records of the court then were admissible to show that the matters which the plaintiff alleged were still open and unsettled by the contract of 1895 had been determined and settled, and were the (315) matters referred to in the memorandum and agreement of 1899.
The defendants offered in evidence the deed from Archer and wife to Thomas F. McGarry and Robert N. Archer, as trustees,
and also a bill of sale from the same to the same. It is not stated in the record what property was conveyed in these instruments nor for what purpose they were made, and the instruments themselves are not in the record. But if they were before us we cannot see why the property conveyed therein did not vest in the other trustee, McGarry, even if the objection on the grounds stated, to-wit, that Archer as an individual could not convey to himself as trustee, could be maintained. We think exception 29 cannot be sustained for the same reason given in the discussion of exceptions 10, 22, etc.
Exception 30 is about a harmless matter. A question was put to a witness as to whether he had heard of any large sales of land in Graham County. He answered that he had only known of them through hearsay. Nothing further was said and no harm was done.
Exceptions 31, 32, 33, 34, 37, 38, 39 and 40 relate to the value of lands in Graham County as evidence of the value of the lands described in the pleadings in this case. The defendants were undertaking to prove the value of the land in Graham County, which they had contracted to sell to the Cleveland people, by showing the value of other mountain lands in Graham County similarly situated and of similar character. We think the evidence was competent. In Warren v. Makely, 85 N.C. 12, it was undertaken to show the value of a certain tract of land by proof of the value of a certain tract of land by proof of the value of an adjoining tract. There, there was no evidence of similarity in the character of the soil, quality of the land or of anything going to show that the two tracts were alike, and the evidence was not allowed. But in discussing that case (316) Smith, C. J., said: "The question is simple and absolute, unaccompanied with any suggestion that the two tracts possessed the same or similar qualities in soil, culture, location or improvement, or possessed in common the elements that enter into the estimate of their respective values. . . . As presented to us in the record, and without any explanatory circumstances, the question was properly excluded as irrelevant and misleading." Those very matters are presented here in our record, and we are of the opinion that they make the evidence competent.
Exceptions 41, 54 and 55 relate to the practicability of removing, manufacturing and selling the timber from the lands of the defendants. A witness, who testified that he was 52 years old, that he had been in the lumber and timber business for 35 years, that he had worked in lumber in all capacities, in the woods, part of it from a chore boy up to scaler, foreman
and superintendent, and that he had tried to keep posted in every location where there was timber manufactured and for sale, and that he took the best lumber journals, etc., and who further testified that he took charge of the property with a view to make a sale of it for the defendants, and that he became acquainted with the timber and location, the rivers and the roads and the general character of the country; was asked whether or not, from his knowledge of that country, the location of the timber, his experience as a lumber man and timber man, if it would have been practicable for these trustees to have undertaken to have that timber manufactured and sell it profitably he answered, "No, I do not." The plaintiff's exception, upon objection to the question and answer, was that it was not competent for the witness to give his opinion upon the question presented, and that it was undertaking to give the witness the opportunity to decide what is the province and duty of the court and jury to pass upon, and therefore incompetent. It is common learning that opinion evidence, as a rule, ought not to be received. But there are exceptions to the rule, (317) and it seems to us that this is a proper instance in which an exception ought to be allowed. And the witness may not be treated as an expert, but as an ordinary witness who is entitled to an opinion based upon facts within his own knowledge, the circumstances from which that opinion is deduced being such as cannot be made palpable to others. There are so many contingencies and difficulties, inherent and extraneous, about the timber business, especially in mountainous sections lacking facilities for transportation, nearness of markets, etc., that it would be almost impossible for the ordinary jury to arrive at a just estimate of the expense attending such a business, without the aid of the judgment and opinion of those persons who have experience in the same.
Exceptions 42 and 43 cannot be sustained. The paper-writing introduced as evidence was collateral to the issues, and its contents provable without producing the paper. Carden v. McConnell, 116 N.C. 875.
Exceptions 44, 45 and 46 relate to interviews between Archer and C. R. Palmer and Ridder, in reference to a sale of the land and an option to purchase. It was competent to show efforts to sell the property, good faith, etc.
Exception 47 was to the permitting of Archer to give evidence of a conversation between himself and a chemist on an analysis of some samples of mineral earth submitted to him for examination. The court admitted it only for the purpose of
showing good faith, and not on the question of the value of the land.
The forty-eighth exception relates to the exception of Archer to the effect that the plaintiff, through McGarry, who represented him, wished to pay the first installment of the debt due to Archer, and had offered to raise his part of it. We see no error in its admission.
The forty-ninth exception was entered to the permission (318) of his Honor for Archer to state how the debts due to the Cooper and Bragg estates, mentioned in the agreement of 9 December, 1899, were arrived at. If it was not material it was harmless.
Exceptions 50 and 60 refer to the ruling of the court on the matter of the issues. The plaintiff tendered, in the first place, nine issues, which were all refused, and later on during the course of the trial tendered another one as to the damages the plaintiff might be entitled to on account of any breach of the trust. It is not stated what became of the last issue tendered, but as it was not submitted to the jury his Honor must have declined it, for the reason that no evidence had been offered to show damages. We have seen that his Honor committed no error in refusing the third issue tendered, and he committed none in refusing the other eight, for they simply particularized the alleged breaches of trust, and the ones submitted covered the case and were clear.
Having treated the exceptions to the evidence and those concerning the issues we come to a consideration of the law of the case.
The defendants, Archer and McGarry, were charged with the execution of the most responsible trusts concerning very valuable property. That property was to be utilized by them for the payment of a very large indebtedness in the way of encumbrances upon the same. As we have already said in the discussion of one of the matters of evidence the defendants had the power, under the agreement and deed of December, 1899, to make a private sale of the property, in whole or in part, and at any time they saw fit. In the memorandum and agreement of December, 1899, there was no provision made for nor any suggestion of the manufacture and sale of the timber separate from the land itself. But the deed made by the plaintiff and others to the defendants, Archer and McGarry, in 1899 (319) contains this provision (quoted literatim et punctuatim
from the pleadings and from the instructions given by the court to the jury): "Nevertheless to take immediate possession of the same, manage, control, safeguard, sell, dispose of,
cause to be manufactured and sold the timber off said lands in whole or in part, in such manner as the said parties of the second part shall deem best to covert said timber or lumber into money, speedily and in the most advantageous way, but without authority to incur any indebtedness or liability upon grantors." In addition to what we have already said on the power of Archer and McGarry to sell the property it may not be amiss to add that if the language just quoted was all that was used in the agreement and memorandum and deed of 1899 on the subject of the sale of the land itself, we would have grave doubts about the power of the defendants to sell the land, which they have contracted to sell to the Cleveland people. But the deed of 1899, as we have seen, refers to the memorandum and agreement of the same month and year, and the makers declare it their purpose to carry out the memorandum and agreement, that latter agreement giving, as we have seen, full power to sell the land itself. And, besides, the deed itself in the last clause reads, "And in case of default in making any of the payments, as mentioned in the said contracts, the said land and the timber thereon shall be sold by the grantees herein, and the proceeds of said sale shall be paid on account of the sums so due said Archer."
In the discharge of their duties as trustees it was in their sound and honest discretion, in making provision for the payment of the indebtedness, to take choice between a sale of the land itself for that purpose and the undertaking of the cutting and manufacturing of the timber or lumber separate from the land. They were not required to test the experiment of the latter plan if they honestly and reasonably believed that it ought not to have been tried. If they thought the (320) best plan to relieve the indebtedness was by a sale of the land itself they had the power to sell it, and it was their duty to do so. They were given that discretion in the memorandum of agreement and in the deed, and all they were required to do was to exercise it conscientiously and with reasonable care.
But the plaintiff in this connection insists that it is not in the power of the defendants to make the sale they proposed to make to the Cleveland people, for the reason that there is a proviso in the sale to the effect that no such sale shall be made of the whole of the said property unless sufficient money be realized to satisfy the claims of the several parties therein mentioned, principal and interest; that is, that the trustees shall not have the power to sell all of said property, whether they sell the same as a whole or the whole by parcels, unless sufficient money could be realized to pay all the claims secured by the
contract; and that there was evidence offered tending to show that the balance of the value of the land, lying in Cherokee, Clay and Swain counties, added to the amount of the contract price of the Graham County land, would not equal the whole of the indebtedness provided for in the deed of 1899. That contention cannot be sound. Of course if all the land had been contracted to be sold for less than the entire debt the plain words of the deed would prevent such a sale. But the object in view was the payment of the indebtedness by a sale of the property, and under the contracts the defendants, Archer and McGarry, had the right to sell any part of the property at such price, in such manner and upon such terms and conditions as they deemed proper. If, therefore, they sold any part of the property less than the whole, in good faith and for fair value, the true intention of the deed would be carried out. The proviso in the deed doubtless was put there to prevent an improvident sale of the whole, and to subject the conduct of the (321) defendants to scrutiny, and to compel them if they sold the property in parts or lots to procure a fair price for such lots. If it could be shown, however, that the contemplated sale of the Graham County land affected injuriously the value of the land lying in the other counties because of the separate sale, then the trustees would not be allowed to consummate the sale, even though the price for the Graham County land was its full value. It was the duty of the defendants to use their best business judgment and reasonable skill to raise the money to pay the indebtedness out of the property, and if they failed to do so they were guilty of a breach of trust; and they were to guard and preserve the interest of each beneficiary under the trust in choosing between a sale of the property and the manufacture of lumber, and also in making any sale of the property if they chose that way. And also, if it was for the best interest of all parties under the trust, for the defendants to have manufactured and sold the lumber, or that they could have found out that that was the best way of raising the funds to pay the indebtedness, and failed to do so, they would have been guilty of a breach of trust. The defendants themselves were not required to go upon the property if they used a sound discretion in the selection of Creith, their agent, who did take possession for them.
The memorandum and agreements, as we have seen, bear date 9 December, 1899, but there was evidence that they were not executed or delivered until February, and Creith, as agent, took possession in the early days of March following.
The reasonableness of time elapsing between the execution
of the papers and the taking possession of the property by the defendants' agent was submitted to the jury, and under proper instructions.
As we have already said, in discussing the evidence, all the agreements and contracts concerning the plaintiff and defendants made prior to December, 1899, were merged (322) into the latter, and they were not for the consideration of the jury. His Honor charged fully along all these lines, and as we have decided the law to be in the matter, and our discussions have been based on the judge's charge and the instructions asked by the plaintiff and refused by his Honor. The plaintiff's fifth, sixth, seventh, eighth and twelfth prayers for instructions have not been considered in what we have said, and we will now take them up.
The fifth concerned the evidence in relation to some nonsuits suffered by the defendants in actions brought by others concerning the trust property. On that instruction the court told the jury that the trustees were bound to prosecute the actions if in their reasonable judgment the prosecution of such actions was to the interest of the trust estate, and if they should find from the evidence that the nonsuits were negligently had after 8 December, 1899, the date of the trust deed, and by reason of the nonsuits injury came to the estate, the defendants would be guilty of a breach of trust — negligence being the want of that degree of care that an ordinarily prudent man would use in the same or similar circumstances.
The sixth prayer for instructions was in relation to depredations by squatters and trespassers on the property. His Honor told the jury in reference to that matter that the defendants should have used due diligence and care in keeping trespassers off, and if they should find from the evidence that the defendants, through their agent, did not, after 8 December, 1899, use such care and diligence as an ordinarily careful business man would have used in his own business under the same circumstances, then that would have been a breach of trust, and that they should so answer; and if such precaution was taken and such diligence exerted then they did not commit a breach of trust in failing to keep off the trespassers.
The seventh prayer was concerning the failure of the defendants to pay taxes on the land. His Honor told (323) the jury that if they should find from the evidence that the defendants failed to use their best judgment and reasonable skill, as it was their duty to do, to raise money out of the trust funds, and by reason of such failure the trust property or any part thereof was sold for taxes, then they should find that the
defendants had committed a breach of trust, and they should so answer.
The eighth prayer for instructions was directed toward the alleged loss of a quantity of felled timber and logs belonging to the trust property, and which were alleged to have been injured and lost by the negligence of the defendants. In reference to that matter his Honor said that if the jury should find from the evidence that if the defendants, after 9 December, 1899, the date of the trust deed, suffered the same to remain there unprotected, and allowed them to decay and become worthless, they had made a breach of trust in that respect, and the jury should so answer. But that it was not incumbent on the defendants to take charge of the logs, if the jury should find that they were worthless, or if the defendants, in their honest and best judgment, were of the opinion that the logs were so damaged that it was not for the best interest of the trust for them to take charge of them. We see no error in the instructions given, and such parts of the ones asked by the plaintiff that were proper were given, and those parts not proper were rejected.
The instructions of his Honor given on the fifth, sixth and eighth prayers were excepted to by the plaintiff on the ground that there was no evidence to support these instructions. We take a different view of the evidence.
The twelfth special prayer for instructions has been considered in our treatment of the sixth prayer. The jury answered the first and second issues "No" and the third "Yes." We see no error in the trial, and the judgment is
Affirmed.
(324)