Hubbard v. Elmer, 7 Wend. 446

Hubbard v. Elmer

7 Wend. 446 | N.Y. Sup. Ct. | 1831

By the Court,

Nelson, J.

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 *448license to enter, much less to enter and commit waste, by destroying the timber, 9 Johns. R. 35, 331; 7Cowen, 229; and if so, it obviously follows, that an agent or attorney, who only has power to “ bargain and sell,” (subject to confirmation,) has no authority to license any one to enter and commit waste, or cut timber. The defendant, therefore, cannot justify himself under the agent. . The agent in this case had no power to sell the timber distinct from the land to the defendant, or any one else, much less to permit the defendant to indemnify himself out of the timber, for securing the first payment on the contract with Jackson.

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.