110 Mass. 389 | Mass. | 1872
Upon the plaintiff’s declaration and testimony, it appears that he had made an oral agreement with Paul for the sale of the standing wood, and that Paul had cut all the wood and removed some of it. The title to the whole wood had vested in Paul, with an irrevocable license to enter upon the plaintiff’s land and carry away what remained thereon, and the plaintiff had no right by his own authority to forbid his doing so. Nettleton v. Sikes, 8 Met. 34. Hill v. Cutting, 107 Mass. 596.
We have great doubts whether upon the allegations in the declaration and the evidence introduced at the trial, it would be competent for a jury to find that the plaintiff informed Paul that he intended to resort to legal process for the collection of the note and the attachment of the wood. But we express no decisive opinion upon that question, because the declaration may be amended, if necessary, and the testimony may perhaps vary, at the new trial, which must oe granted upon another ground.
It follows that the learned judge who presided at the trial erred in admitting evidence of conversations between Paul and the plaintiff, not proved to have been communicated to the defendant ; in refusing to give the last instruction prayed for; and in the instruction given to the jury upon the same point.
Exceptions sustained.