By the Court,
E. Dakwih Smith, J.
As this case is presented to us, I was inclined to think, upon the argument, that there should he a new trial, on the ground that the case should have been submitted to the jury. The requests 'to charge, the charge as stated, and the exceptions to the charge are all out of place in the case. The cause was not submitted to the jury, and there could therefore have been no charge, or exceptions to the charge or requests to charge. The circuit judge took the case from the jury, and directed a verdict for the plaintiff, and a single exception to such disposition of the cause was all that was necessary to raise ■ every question essential for the purpose of the review of his decision. What is stated by way of a charge may have been the reasons assigned by the judge for the decision then made in disposing of the cause. The action being replevin, presented a single issue in respect to the title to the timber in question. It was levied upon by virtue of an execution against the defendant, was at the time in his actual possession, and as some of the proof tended to show, was at the time claimed by him as his property. The case was disposed of upon the , view, that upon the undisputed testimony in the case he had an interest in the timber, subject to levy and sale upon execution. It appears from the testimony of the witness Bitley, who it was claimed was the real owner of the timber in question, that the defendant, before the 13th of December, 1862, had been,engaged in cutting and getting out timber on different lots in Seneca county, and on ihat day he applied to Bitley to make an arrangement for him, Darby, to cut 15 or 20,000 feet of timber for him, the witness, and deliver *414it at Troy; and that at or about that time they made an agreement that the defendant should go on as agent for Bitley to buy the timber standing, for which he, Bitley, was to pay, and Darby, was to cut, hew, raft and deliver it to him, Bitley, at Troy at ten and a half cents per foot; and that the thirty sticks of timber in question were got out under this arrangement. There was no written memorandum of the bargain, but as Bitley-advanced money to the defendant, he gave receipts therefor, which stated what he was to do, in writing, one of which is as follows: “Bec'd Brockport 15th Dec. 1862, of Peter H. Bitley one hundred and twenty-five dollars to apply on getting out, drawing and rafting and delivering at Troy from 15,000 to 20,000 feet of white oak timber, from the lands of H. Powers, Jacob Frantz and George Backover, at ten and a half cents per cubic foot.
The timber in question was not purchased of either of the persons named in said receipt, but it was in fact paid for by the defendant with money advanced to him by Bitley, who claimed it under the original contract. In taking the case from the jury, the circuit judge must have assumed that they would find that the defendant was the agent of Bitley in the purchase of the timber in question, in accordance with the testimony of Bitley and the defendant. There was really no conflict of testimony on this point. The argument of the . defendant’s counsel here is that this question should have been submitted to the jury, and this is the chief error complained of. But as there was really no substantial conflict in the evidence, it was not error to take the case from the jury, upon that view of the case and upon the assumption that the facts were as stated by the witness Bitley, which was the most favorable view of them for the defendant that could have been taken by the jury upon any submission of the case to them. And such was the view of the case taken by the circuit judge in what is erroneously called a charge in the case before us. The counsel for the defendant claims *415that the defendant was the agent of the witness Bitley for the purchase of the timber, and that the title was in Bitley. The witness Bitley states the facts, and shows in what sense and to what extent the defendant was his agent. He was to furnish money to Darby to buy the timber. It was to be bought there in his name, and Darby was to get it out and transport it to Troy, for which he was to receive ten and a half cents per cubic foot. Upon this statement of the facts, Bitley clearly had the general property in the timber, but I think he had not the entire title to it. Darby was to select it in the woods standing, was to bargain for it, cut it, hew it, raft it and deliver it at Troy. This gave him, I think, a special property in the timber. When it was levied upon by the sheriff it was in his possession on the canal, and he was engaged in transporting it to Troy. Bitley had no right to the possession of it at that time. He could not have taken it from Darby, upon any pretense. Bitley’s rights in respect' to it are certainly not greater than they would have been if he had himself purchased and cut the timber, and after it was cut he had employed Darby to hew it and raft it to Troy, and Darby had partly executed his contract at the time of the levy. In such case, clearly, the general property would have been in Bitley. It would be like the case of the brick manufactured for the owner of the yard, he finding the materials and the manufacturer finding nothing but the labor, in which it was held that the manufacturer had a property in the brick; (See Moore v. Hitchcock, 4 Wend. 292;) or like the case of Eaton v. Lynd, (15 Mass. Rep. 242,) where yarn was delivered to a man to be woven into cloth upon commission and he relet the job. It was held he had a special property in the cloth, so that he could maintain trover for it. In the case of Mount v. Williams, (11 Wend, 78,) where logs were left with a sawyer to be manufactured into boards, at Whitehall, and the same were to be delivered at Troy, it was held that the manufacturer had a lien upon the timber and a special property in it till paid for sawing and trans*416porting. (And see also 4 Carr. & Payne, 15; 2 Kent. 634.) It is a settled rule that bailees for hire of labor and services have a special property in the thing about which labor and services are performed. (Story on Bailments, § 422. Edwards on Bailm. 353. 8 Greenl. 101; and Morgan v. Congdon, 4 Conn. Rep. 552. 1 Denio, 168.) It follows from these views that it was not error in the circuit judge to take the case from the jury, and that there was no disputed question of fact which could have been found in favor of the defendant more favorably than the' view assumed by the judge in disposing of the case. The law of the case, as respects the rights of Bitley and the defendant, as between themselves, was correctly stated by the judge in what is called a charge. The defendant had a special property in the timber, with the right of possession, and Bitley had the general property, to become absolute on the delivery of the timber at Troy. It remains only to see if, upon this view of the rights of the parties, the case was properly disposed of at the circuit.. The action is replevin. The plaintiff had- acquired the title of the defendant in the timber by levy and sale, the property being at the time of the levy, and at the time of the commencement of this suit, in the actual possession of the defendant. The levy upon the property in the defendant’s possession, and sale, prima facie divested the defendant of title and transferred all his title to the plaintiff. And as between the parties to the action, the plaintiff had the clear right to recover. He had the right of possession, as against the defendant, and the right of property united. But the defendant sets up by answer the title of Bitley, and claims to defeat the action upon such title. If it was admissible for him to set up title in a third person, as against the plaintiff, and to hold possession under such title, he must clearly set up a good possessory title. Very clearly, I think, he does not set up such a title. At the time of the levy on this timber by the sheriff of Seneca, Bitley had no right of possession in it or to it. He could not have taken it from the defendant. He *417had no color of right to reduce it to immediate actual possession. He was entitled to have it delivered to him at Troy, but no certain time was fixed in the contract between him and Darby for such delivery, and as between them the defendant had the clear and unqualified right of possession as well as a special property in the timber at the time of such levy. The proof of a general property in Bitley at the time of such levy was not, therefore, a good defense to the suit, and the rights of the parties must be determined as they stood at the time of the levy. The plaintiff was therefore clearly entitled to a verdict finding the title of the property in him, and to be restored to the possession. But as the title he had acquired, as we have seen, was a mere special property, he was only entitled to a verdict finding the property in him and an assessment of the value of the timber at the amount of the value of his special property therein. (Dows v. Greene, 24 N. Y. Rep. 646.) This is precisely what the judge held at the circuit, but it appears that the principle was not correctly carried out, and the value of the special property was estimated upon an erroneous basis. The counsel for the parties, after the judge had correctly stated the law applicable to the case, it seems, proceeded by agreement to adjust the relative rights of the plaintiff and Bitley in the timber, and erroneously allowed to the plaintiff, as the value of his special property, the whole value of the timber, deducting the cost of the timber standing. The judge had stated, as the rule doubtless is, that Bitley was entitled to the timber at Troy, at whatever might be its value there, deducting ten and a half cents for the services of the defendant in getting out and transporting the timber to that place. The value of the special property of Darby must be the ten and a half cents per cubic foot deducting therefrom the expense of transportation of the timber from- Seneca Falls to Troy. The plaintiff would have been bound to incur that expense to have earned the full contract price of ten and a half cents per cubic foot, the price payable in Troy. Unless, therefore, *418the parties can rectify this error of their counsel there will have to he a new trial, as I see no evidence upon which the court can direct the proper deduction to he made so as to correct the verdict.
[Monroe General Term,
September 5, 1864.
New trial granted.
Welles, J. 0. Smith and JS. Darwin Smith, Justices.]