Goldthwaite v. Kempton

13 N.H. 449 | Superior Court of New Hampshire | 1843

Gilchrist, J.

The verdict of the jury has settled the fact, that there was no agreement between the plaintiff and E. Kempton, 2d for the sale of the grass. It is, therefore, unnecessary to enquire into and determine the effect of a transfer by E. Kempton, 2d of his interest to the defendant, upon which supposed case the first part of the instruction of the court was founded.

Nor need we enquire whether an action of assumpsit would lie, upon the ground that the plaintiff might waive the tort committed by the defendant. It is manifest that all parties supposed that the defendant went upon the plaintiff’s land by virtue of a contract made with some person having authority. The plaintiff might have supposed he was. there, having agreed with E. Kempton, 2d that he would pay the plaintiff for the grass. Or if the evidence do not warrant the belief that the plaintiff knew at the time that such an agreement had been made, and if we suppose this position to be an after-thought of plaintiff’s, then the plaintiff must have thought that the defendant cut the grass as the agent of E. Kempton, 2d. On the other hand, the defendant probably considered himself as the owner of the grass, and liable to account for its value to E. Kempton, 2d or to the plaintiff.

There is, then, nothing to authorize the position that the defendant intended to commit a trespass. The evidence in the case tended to prove that he was actuated by better motives in his entry upon the land than he is now willing to have imputed to him, for the sake of defeating the plaintiff in this action. The jury having found that the plaintiff did not sell the grass to E. Kempton, 2d, the remaining facts are, that the defendant went upon the plaintiff’s land, and cut and carried away the grass, and that the plaintiff pointed out to him the boundaries of his land, and showed him where and how far he might cut the crop. These facts constitute a sale and delivery of the crop by the plaintiff to the defendant, and show a liability by the defendant to pay its price to the plaintiff. The defendant was not a trespasser, for all he did was done with the knowledge and by the assent of the plaintiff. No tort having been committed, there is no tort to be waived, and the action of assumpsit was properly brought, and is maintainable upon this evidence, without inquiry into any other point.

Judgment on the verdict.