Emerson v. Fisk , 6 Me. 200 ( 1829 )

Weston J.

delivered the opinion of the Court, at the ensuing July term in Waldo.

The issue submitted to tbe jury in this case was, whether the logs in controversy were tbe property of the plaintiff. They were instructed by the judge at the trial that if they were satisfied that the timber was cut on the land described in the contract made between the plaintiff and T'obias Michael and Hugh Alexander, on the thirtieth of November 1825, the plaintiff was entitled to their verdict. We are called upon to decide upon the correctness of this instruction. The timber was originally the property of the plaintiff, and must be understood to have continued his, unless he had parted with it. Michael and Alexander had permission to enter upon the land, to cut the timber, to cause it to be transported to Stillwater, there to saw it, and thence to run the boards to Bangor. That no question might arise as to whose property the timber, logs and boards were to be considered in their various -stages, it was expressly provided that the plaintiff should retain the sole ownership, until satisfied that the fourth part, to be deposited for his special use, was “ of an average quality with the whole, and until paid all money and debts due to said Emerson from said Tobias and Hugh, or either of them, at that time, for either money, goods, oxen, or any other advances made for them.” it is therefore so far from being true that any change of property in the transit is to be implied from the contract, that it is therein expressly negatived.

It is however insisted that these terms are limited to the timber that should be cut the winter and spring following the date of the contract, and that they do not attach to such as might be cut subsequently ; that Michael and Alexander were the purchasers of the timber, which remained on the land after 1826; and that the logs repleviéd, having been wholly or principally cut in 1827, cannot be regarded as the property of the plaintiff. They stipulated that they would cut all the pine timber suitable for boards, within the limits specified, which a prudent man would cut from his own land. But for .this provision, their interest might have tempted them to cut only that which was most valuable and most accessible. That the plaintiff might be secure upon this point, he required that they should pay for what might remain after the first season, in the same manner as if they had cut the whole; and that he should retain for the fulfilment of this part of the agreement, as much as for his fourth part of what might be actually cut the first season, and for his advances. If these engagements on their part had actually been complied with in 1826, and the plaintiffhad been paid for his whole timber and advances, that which remained on the land might be considered as transferred to them for their separate and proper use. This, although not expressly stipulated, would fairly result from the fact of payment. But payment is not pretended. If by the terms of the contract the plaintiff’s right to retain his original title to the timber was restricted to such as might be cut the first season, if they abstained from cutting that season, he would subsequently retain only a personal remedy against them for the timber and advances, upon which it is manifest he did not intend to rely. He clearly guards against such an implication, providing that no part of the property should be held to be theirs, until he was paid and indemnified. Then, and then only, such of the boards as might not be wanted for this purpose, were to be delivered over to them.

But it is urged that if the general property was in the plaintiff, yet if at the time of the replevin he had no right to the possession, his action cannot be maintained ; and that he was not entitled to possession, while the logs were on their way to the place of their destination. It might admit of question whether, if Michael and Alexander had not sold the logs, the plaintiff might not have taken possession of them in their transit, as he expressly retained the sole ownership to himself. If he had done so to the prejudice of their just expectations under the contract, he would doubtless have been bound to indemnify them for any loss they might have suffered from his interference. But however this may be, we are well satisfied that the agency, authority, or license, given or confided to them by the plaintiff,, was not assignable. The plaintiff had a right to appoint his own agents in the management of his property, and they could have no authority to substitute others. If a party license A to cut timber upon his grounds, A has no right to transfer such license to B. The owner may repose a confidence in the one, which he would not extend to the other. The plaintiff was to remain the sole owner. This would seem to take away all pretence even of special property on the part of Michael and Alexander, leaving them only a charge or oversight of the logs, but entitled by contract to a specific compensation. But suppose they had a special property ; it could only be as bailees for a special purpose. They clearly had no authority to sell the logs. This would be entirely inconsistent with the rights of the plaintiff as the general owner. By this unauthorized act, the bailment, and their authority under it, was determined. The defendants could derive no rights from the tortious act of Michael and Alexander. The plaintiff, the original proprietor, chose to retain to himself his right as sole owner-, until his demands were satisfied. This right, the defendants having shown no sufficient title against him, has been properly sustained by the verdict.

The rule, which precludes counsel from commenting on the non-production of a paper by the adverse party, unless such party has been notified to produce it before trial, is designed to protect him from any unfavorable inferences to be drawn from his omission to do what he might not know would be expected of him. It is founded also upon the presumption that if seasonable notice had been given to the party, he might have produced the evidence required. As the trial in the case before us consumed part of two days, as the paper in question was within a few rods of the court house, and the defendants were notified to produce it the first day of the trial, which they declined to do, the presiding judge, being of opinion that it was not a case within the reason of the rule, permitted the counsel for the plaintiff to comment on its non-production. Upon consideration we think it better that it should be understood hereafter that the rule will be uniformly enforced according to its terms; yet under the circumstances of this case we are of opinion that the verdict ought not to be disturbed upon this objection.

Judgment on the verdict.

See Waterston & al. v. Getchell 5. Greenl. 435.