Waterston v. Getchell , 5 Me. 435 ( 1828 )

Mellen C. J.

delivered the opinion of the Court.

It appears that the logs in question were cut on the plaintiffs’ land, and taken and carried away by the defendant. Of course he is responsible in damages, unless he acquired a title to them by his purchase of Robinson. Whether he did acquire one, as to all, or any part of the specified quantity, is the question to be decided; and the decision must depend on the construction of the special contract between Robinson and the plaintiffs.

As to the one fourth part of the logs, mentioned in the agreement, there can be no doubt. Robinson had nothing to do with them but to haul and deliver them at a certain place, for the use of the plaintiffs ; and he did so deliver them to their agent at the upper pond, at Oldtown falls. As to the remaining three fourths, he was by the contract to deliver them also to the plaintiffs, at a certain place, where they wore to receive them, transport them to their own mills, and saw them ; and within a reasonable time, deliver to Robinson three fourths of the boards made from them. This quantity of logs was also carried to the plaintiffs’ mills by their agent, for the purpose of being there sawed. It was also expressly agreed by the plaintiffs and Robinson, that the ownership of all timber so cut, how or where» ever situated, should be and continue in the hands of the plaintiffs, till all the conditions of the agreement should be complied with, and all monies due to them, and William, Emerson, should be paid •, and it does not appear that such conditions have been complied with, or such sums paid. This provision in the contract was well known to the defendant, at the time he committed the alleged trespass. From these terms of the contract, thus stated, it is evident that Robinson, was not a part owner of the logs, nor an agent to sell them ; they belonged to the plaintiffs 5 and he was to be compensated for his labor in cutting and hauling the logs, by a certain proportion of the boards, to be made from them. As to these, the plaintiffs had a reasonable time allowed, within which to deliver them ; but to prevent all misapprehension dispute or eventual loss, it was agreed that the ownership should continue in the plaintiffs as before mentioned. Now, without deciding whether a purchaser of the logs from Robin~ son, without notice of the terms and condition of the agreement, could be protected, it is manifest that the defendant, having notice at the time, could gain no title, nor exercise any control or right over the property, beyond those which Robinson himself had and could exercise; and he had expressly bound himself to exercise none. We are of opinion that the action is well maintained, for the value of all the logs taken, and according to the agreement, of the parties, a default must be entered, and judgment for the plaintiffs for one hundred and seven dollars.