Richard Smith, Respondent, v. Charles N. Morse, Appellant

Richard Smith, Respondent, v. Charles N. Morse, Appellant. Contract sale of a wood lot accompanied with authority to cut the wood—surrender ■ of the contract to the vendor while a licensee of the vendees is cutting the wood — liability of such licensee for wood cut before and after notice to stop cutting. The vendor in a contract for the sale of a wood lot authorized .the vendees to cut and sell the 'timber growing upon the lot. Thereafter the vendees sold to one Smith the timber growing upon a portion of the lot to be thereafter cut by him. Subsequently the vendees surrendered their contract to the vendor, and the latter, who knew that Smith was cutting timber upon the lot and had made no-previous objection thereto, notified him to stop cutting. Smith continued cutting for a few days thereafter, and -the vendor thereupon brought an action of trespass against him for the cutting done by him both before and after the vendor had notified him to stop. The jury awarded a verdict of §300 to the plaintiff, and judgment was entered thereon for treble that amount. Held, that, assuming that the license given by' the vendor to the vendees was. personal to the latter, the vendees might while it remained unrevokéd employ the defendant to do the acts which they were authorized to do, and that consequently the defendant was not a trespasser up to the time when he received notice to quit; That it was error for the court to allow the plaintiff to prove the value of the-timber cut by the defendant before being notified to stop, and at the same time.to refuse to allow the defendant to show that he acted in good faith under a. claim of right and with the knowledge and consent of the plaintiff; That, as it was impossible to tell whether the verdict was based upon the cutting-done before or that done after the defendant received notice to stqp, the judgment entered upon the verdict for three times its amount should be reversed. Appeal by the defendant, Charles H. Morse, from a judgment of the County Court of Ulster county in favor-of the plaintiff, entered in the office of the clerk of the county of Ulster on the 15th day of May, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of May, 1900, denying the defendant’s motion for a new trial made upon the minutes, and also from that portion of an order bearing date the 4th day of June, 1900, and entered in said clerk’s office, allowing to plaintiff treble damages, nunc pro tunc. ' In December, 1895, the plaintiff entered into a contract in writing with McKnight and Rosecrans by which he agreed to sell and convey to them a wood lot of about 200 acres, for which they were to pay $1,200, $600 to one Cantine who held a mortgage to that amount upon the premises, and the remainder in various prescribed installments.' McKnight and Rosecrans were without means, and it was understood between them and the plaintiff that they were to cut off and sell the timber growing on the lot and with the money obtained therefrom make the payments required by the contract. McKnight and Rosecrans entered into possession and began cutting the timber. Of this the plaintiff had full knowledge and even assisted them in the work. On the 11th day of April, 1896, McKnight and Rosecrans sold to the defendant the timber growing on a portion of the lot, to be thereafter cut by him, and also a quantity of timber already cut by them and lying on the lot. Under this arrangement the defendant began cutting timber. The plaintiff knew that the defendant was cutting timber and made no objection. In January, 1897, McKnight and Rosecrans, although they had kept the terms of their agreement with the plaintiff, surrendered their contract with him, and thereupon the plaintiff forbade the defendant to continue cutting. The defendant did, however, continue for a few days, and for this cutting and for all the cutting by defendant under his agreement with McKnight and Rosecrans this action is brought. The complaint alleges trespasses committed by defendant on various days from April 15, 1896, and particularly on certain named days from the eighth to the sixteenth of February, inclusive, and asks treble damages. The jury awarded two hundred' dollars ($200) damages to plaintiff, and judgment was thereupon, directed for six hundred dollars ($600) and entered accordingly. Howard Chipp and John R. De Vany, for the appellant. John E. Van Etten, for the respondent. [MAJORITY — Fursman, J.:] Fursman, J.: Although the contract between the plaintiff and McKnight and Rosecrans did not in terms authorize them to cut and sell the timber .growing on the lot therein described, the evidence clearly established that the very intent and object of the agreement was that they should cut and sell the timber and out of the proceeds pay the plaintiff the contract price. In furtherance of this object they immediately began to. cut and sell the timber with the full knowledge and consent of the plaintiff.' In doing this they were not in any sense trespassers, but were cutting under a license from plaintiff. Assuming that this license was personal to them, they might, while it remained unrevoked, employ defendant to do the acts which they were thus authorized to do, so that, until the surrender by them of the original contract on the 31st of January, 1891, and the subsequent notice, to defendant, he was clearly acting within his right and was not in any sense a trespasser. On the trial the plaintiff was permitted to prove the value of timber cut by defendant, not only after the surrender and notice, but also that cut by him while acting. under the original contract between plaintiff and McKnight and Rosecrans, and under the proof thus made it is impossible to determine what injury the plaintiff suffered by reason of the acts of defendant committed after his relation to the parties had been thus changed. Moreover, the learned trial court excluded all evidence offered by defendant tending to show that he acted in good faith, under a claim of right, and with the knowledge and consent of the plaintiff. This, we think, was error, for had he been allowed to prove that the plaintiff at the time of the surrender agreed that he might continue cutting under his agreement with them, lie would thereby have become a licensee of the plaintiff to that end, and no action could have been maintained against him for any thing done by him while such license remained unrevoked. The jury were charged by the trial court that they were to determine whether the defendant acted in the belief that he owned the property, and were assured that if he believed he had a right to do • this he could not be held for treble damages. No finding was made touching this question, but a general verdict of two hundred dollars ($200) was returned. As above suggested, it is impossible to determine from the evidence whether this verdict was based upon the acts of defendant after the license to cut had been revoked, or included also the cutting during the time the defendant was a licensee for that purpose, but the court nevertheless trebled the damages found by the jury and directed a judgment for six hundred dollars ($600). This also, we think, was error. For these reasons the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event. All concurred; Parker, P. J., in result. Judgment and order reversed and new trial granted, with costs to appellant to abide event.