5 Barb. 364 | N.Y. Sup. Ct. | 1849
We think a new trial must be granted, for the errors of the judge upon the trial of the cause; and we will very briefly assign our reasons for this opinion.
The action was trover, for the conversion of a large quantity of pine lumber, which was seized by the defendant and sold upon a judgment against John R. and Hiram Woodworth. The premises on which the timber grew, from which the lumber was manufactured, was known as lot 155 in Richland, in the county of Oswego. This lot was, on the 1st day of August, 1840, contracted by the plaintiffs to be sold to the said Woodworths, at the purchase price of $5530, payable in several instalments. The agreement for the sale was executed by Wm. C. Pierrepont, by virtue of a power conferred on him by the last will of Hezekiah B. Pierrepont deceased. This contract contained a clause by which the said Woodworths covenanted not to “ cut or suffer to be cut, for sale, any timber fro.in the said land, without the consent or approbation of the said party of the first part, or his attorney, first had and obtained in writing.” This condition was also expressed in a memorandum endorsed on the contract, of the same date, by which it was agreed that the contract might be renewed if the interest should be kept punctually paid up. No written permission to cut timber was ever given; and we are of the opinion—
I. That the judge erred in admitting evidence of a permission by parol. It is true that a payment was transferred from another contract to this; but that was done at the request, and for the benefit, of the Woodworths.
It will be borne in mind that this action is not trespass against the party who cut the timber by the consent of one of the plaintiffs; but an action of trover, brought, after notice by the plaintiffs of their claim to the lumber as their property, and is founded on a subsequent conversion of it by the defendant. The question, therefore, is whose was the title to the property i in the lumber ? The defendant’s title is derived under that of the Woodworths, and can be no better than theirs. How then did the property in and title to, the trees, out of which this lumber was made, pass to the Woodworths? Those trees were
Again ; by the very terms of the written contract, the parol license conferred on the Woodworths no power to cut the timber in question; and this they well knew when they acted un
II. But if we are mistaken in this view of the case, and if the ground assumed by the judge at the circuit should be held to be tenable, viz. that if a parol license were given, and relying on it the Woodworths had expended labor and money on the faith of such license, the plaintiff should be estopped from denying it, still upon the facts of this case the plaintiffs were entitled to recover nearly the entire value of the lumber converted by the defendant.
Upon the testimony of Hiram Woodworth it is certainly
We think the right to this extra quantity of timber may be, tested by a resort to the rules of special pleading. To the declaration we will suppose the defendant to have pleaded a parol license to the Woodworths to cut the timber in question, and a sale of the lumber on an execution in favor of the defendant against them. To this plea the plaintiffs would reply, that the parol license was void by the terms of the contract. The defendant must then rejoin, that the Woodworths acted on the license and expended money on the faith of it, and therefore the plaintiffs should be estopped from denying it. To this we think the plaintiffs might (irrespective of the question of a departure) successfully surrejoin, either 1st. That as to this quantity of timber, there was no license at all, the entire quantity to which the license applied having been previously cut;. or, 2dly. That the license was procured by false and fraudulent representations, and was grossly violated and abused afterwards, and was therefore void.
There are other important considerations which may be urged against the right of the defendant to retain this verdict ; but we have not time to discuss them. We are satisfied, for the reasons we have givén, that there should be a new trial. And in granting it we only follow the circuit judge, who himself allowed a new trial, upon a more deliberate examination of the questions involved in the case than he could give during the course of a trial at the circuit.
A new trial is granted; costs to abide the event.