Whitman v. Freese , 23 Me. 185 ( 1843 )

The opinion of the Court was by

Shepley J.

This is a suit upon a promissory note made by the defendants payable to F. & I. S. Whitman, or order, and by them indorsed to the plaintiff, who prosecutes the suit for their benefit. It was received in part payment for boards sold without survey, by estimation, by their agent, Wadleigh, to the defendants, who contend, that the sale was made in violation of the provisions of an act approved on March 9, 1834, regulating the survey of lumber in the county of Pe-nobscot. Tho burden of proof is upon them to establish that fact, if they would thereby avoid their contract. Tho only testimony introduced by them in proof of it came from the witness, Brown, who testified, that at tho time of the sale Chadwick, one of the defendants, “ said in the presence of Wad-leigh, that he wanted the boards for the purpose of shipping them over the shoals; and the agreement was, that said Chadwick was to take them by estimation of the quantity; and that Wadleigh was to run them to Bangor at one dollar per thousand ; that Wadleigh said, the boards had never been surveyed ; that they called upon him to assist in estimating the quantity ; and they estimated the quantity at two hundred thousand.”

The clause in the fourth section of the act declares, “ and it shall not be lawful for any person or persons to sell or purchase any of said sorts of lumber within said county, unless the same shall be surveyed and marked as aforesaid by the surveyor general, or by one of his deputies, except such as may be purchased by any person or persons for his or their own use, or for home consumption.” The sixth section imposes a penalty upon any person, who shall sell or purchase any such lumber, not surveyed and marked, as the act requires ; and upon any person not being tho surveyor general, or one of his deputies, who shall take an account of or survey any such lumber, “ but said forfeiture shall not extend to such lumber as the parties may agree to have shipped without survey ; provided the samo bo actually shipped in pursuance of said agreement.” The inquiry put to the witness, “ what place he supposed, the defendant, Chadwick, meant by tho shoals,” was properly suppressed. The object might perhaps have been legally attained by a different mode of examination. But if the place alluded to be without the limits of this State, and the phrase, home consumption, be construed to have reference to the use of them within the State ; the testimony does not prove, that the sale was made in violation of the provisions of the act, for it does not prove, that the boards were not purchased by the defendants for their own use. And such a purchase would be lawful without a survey. The testimony would authorize the conclusion also, that the parties agreed to have the lumber shipped ; for the contract appears to have been completed. And in such case there would be no forfeiture by the provisions of the statute.

Judgment on the default.