Bruley v. Garvin

105 Wis. 625 | Wis. | 1900

Winslow, J.

Examination of the evidence convinces us tbat the findings of the jury are sufficiently supported by the evidence, and the main question to be decided is whether these findings, in connection with the undisputed facts, justify the judgment rendered. Garvin attempted to purchase the timber by parol, and paid part of the purchase money, and agreed to pay the balance at a future time. "While this contract was void under the statute of frauds because it was a contract for the sale of an interest in real estate, it was still effective as a parol license to cut timber, which was good until revoked; and the title to timber cut in reliance upon such license, prior to revocation thereof, would vest in Garvin. Marsh v. Bellew, 45 Wis. 36; Lillie v. Dunbar, 62 Wis. 198. So the question simply is whether the license was revoked before Garvin cut the timber and converted it into personal property. There was no revocation by notice. The license had been executed by cutting the timber before any notice of revocation was given. But it is claimed that the written contract of sale of an undivided half of the land made by Bruley with Jesse Lowe December 8, and prior to the cutting of the timber, operated as a revocation of the license pro tanto. It is difficult to see how this conclusion can be escaped. A parol license to cut timber on the licensor’s land is simply authority to do certain acts upon another’s lands. Being founded in personal confidence, it is not assignable, and it is gone if the licensor deed the land to another, or if either party die. Thoemke v. Fiedler, 91 Wis. 386; Northern P. R. Co. v. Paine, 119 U. S. 561. The authority is ended by the transfer of the’title or by the fact of death, and no notice thereof is necessary. The estate of the licensor is gone, and the licensee’s authority to go upon the land necessarily expires with the expiration of the licensor’s estate. 1 Sugden, Vendors (8th Am. ed.), 177, note 1; 2 Am. Lead. Cas. 550, note to Prince v. Case. So, had Jesse Lowe deeded one half of the land to Bruley prior to the cutting, instead of making a contract to convey the same, there is no doubt that the license would have been thereby revoked as to an undivided half of the timber. But the contract to convey vested in Bruley the beneficial title to the land and timber, as between him and his grantor, and divested the grantor of all right to dispose of the timber thereafter. In other words, the grantor’s power over the timber was gone. So the same condition which terminates the license in case of transfer by deed is present in case of a valid contract of sale, and the effect upon the unexecuted, license must be the same. It is true that in the present case the title to the timber was by the contract reserved in the grantor until the purchase money should be fully paid. But this reservation of title was simply to secure the payment of the purchase money. The contract provided in express terms that Bruley should enter on the land and cut and manufacture the timber, and, upon payment of the purchase price, should receive a warranty deed of the property. The reservation of title in the timber simply amounted to a mortgage security, and gave no right to Lowe to dispose of the timber to others, or do anything with it save to resort to it to enforce payment of the purchase money. We conclude that, so far as the undivided half of the timber formerly owned by Jesse Lowe is concerned, Garvin’s license was terminated prior to the cutting thereof, and hence that Bruley became the owner of that half. As to the other half of the timber, there was no valid contract to convey the same made before the timber was cut; and, the jury having found that no notice of revocation of the license was given prior to the cutting, the license was fully executed prior to revocation, and Bruley acquired no title thereto.

One question arises upon the rulings on evidence. The plaintiff in error (defendant below) called as a witness Judge R. B. Salter, the county judge of Clark county and a member of the bar, and endeavored to prove a conversation had by Mm with. Garvin upon a railway train in December, 1896, with reference to his rights in the timber in question. This testimony was ruled out upon objection upon the ground that it was a privileged communication under sec. 4076, Stats. 1898. It appeared by answers to preliminary questions that Judge Salter understood that Garvin stated the facts to him because he knew he (Salter) was an attorney, and would give him an opinion; that a lawsuit was ■contemplated about the matter; that he gave his opinion to Garvin after hearing his statement; that he supposed Gar-vin was seeking his advice, but that he was not retained, and received no fee; and that Garvin was not his client.

"While the question as to the admissibility of this evidence is not free from difficulty, we think the ruling of the court was correct. In <order to entitle a client to the statutory privilege, it is not absolutely essential that a fee should be paid, or that there should he an actual retainer. The exclusion of the evidence is founded upon public policy, in the furtherance of justice, to the end that a man may have free and unrestrained communication with his legal adviser. There can be no reasonable, doubt that Salter was, for the ■time being, Garvin's legal adviser. Garvin unquestionably sought him and stated his case to him in his professional capacity, in order to get legal advice thereon. The subject is quite fully treated in the case of Bacon v. Frisbie, 80 N. Y. 394, where a similar conclusion was reached under circumstances almost identical with' those now before us. Crisler v. Garland, 11 Smedes & M. 136, 49 Am. Dec. 49; 3 Jones, Ev. § 767, and notes.

Some exceptions are taken to portions of the charge. We have examined them and find no prejudicial error. ' They are not deemed-of .sufficient importance to require treatment at length.

Upon the verdict and undisputed facts, Garvin should have bad judgment for one bait tbe damages found, kv wit, $44.06.

By the Court.— As to tbe sum of $44.06, tbe judgment is affirmed, and tbe remainder of tbe judgment is reversed, and tbe cause is remanded with directions to allow tbe plaintiff in error to tax bis costs in tbe trial court and enter judgment therefor against tbe defendant in error. Tbe plaintiff in error will be allowed to tax tbe clerk’s fees i» this court, and bis necessary disbursements for printing, but no other costs in this court are to be taxed.

Mandate modified on motion, March 21, 1900, as follows::

By the Cowrt.— Judgment modified by striking from the-damage tbe sum of $44.06, and as so modified affirmed. Plaintiff in error will be allowed to tax tbe clerk’s fees in, this court and necessary disbursements, for printing but no other costs.