7 Wend. 446 | N.Y. Sup. Ct. | 1831
By the Court,
It has been repeatedly decided in this court, that a contract to sell and convey land upon certain conditions therein contained, does not of itself confer a
From the charge of the judge, it seems he supposed, that if the permission to the defendant to indemnify himself out of the timber on the lot, for his responsibility assumed in behalf of Jackson, the purchaser, was given for the purpose and with the intent to make sale of the land, that it came within the scope of his power and justified the trespass. I cannot assent to this proposition; it would be placing the extent of the power of the agent upon the intent with which he endeavors to execute it, an uncertain and unsafe criterion, whereas it must always depend upon a construction of the instrument itself; upon the intent óf the principal, to be ascertained from an examination of the instrument.
The judge also erred in admitting the subsequent admissions of the agent, that he had given the defendant liberty to cut and carry away the timber. If the agent possessed the power to give such license, evidence of his declarations subsequent to the time of the making of the contract, was inadmissible. 1 Phil. Ev. 76.
There is no pretence that the plaintiff ever ratified or assented to the license given by the agent.
New trial granted, costs to abide the event.
