Cushing v. Longfellow , 26 Me. 306 ( 1846 )

The opinion of the Court was prepared by

WhitjiaN C. J.

— From the report of the Judge, who presided at the trial, wo learn that the action is trespass de bonis asp or tails; that the articles alleged to have been taken and carried away were certain logs, cat on a certain tract of land, containing four thousand acres, situate in the southwest corner of township No. nine, in the county of Aroostook; that the plaintiffs made out a prima facie case by showing themselves to be the mortgagees of the tract; and that the logs were cut thereon by the defendant; that thereupon they insisted oa recovering, as damages, the estimated value of the logs, at a certain landing place, to which they had been hauled by the defendant; and the Court so ruled, and instructed the jury accordingly. But the defendant insisted that the damages should be estimated according to the value of the timber when standing; and the jury were allowed to ascertain what such value actually ivas, with a view to the correction of the verdict in. case the whole Court should be of opinion, that such was the true rule for estimating damages. The jury, however, returned their verdict in accordance with the instruction of the presiding Judge. And judgment is to be entered upon this verdict unless the whole Court should be of opinion that the damages were incorrectly assessed. And, in such case, if dhe rule for the purpose should be found to be as contended for by the defendant, the verdict is to be corrected, as before intimated. If, however, the title to the whole township, as set up on the part of the defendant, should be found to be in him, the verdict is to be set aside, and a nonsuit entered.

The title thus set up in defence must first be considered. It is supposed to depend upon the validity of the laying out of the Baring and Houlton road ; and the assessment upon the said township for the purpose of opening and making the road passable ; and upon the sale and conveyance to the defendant of the whole township, consequent upon the non-payment, by the proprietors thereof, of the sum so assessed.

A variety of objections were in the first place urged against the proceedings in laying out the road, which we have not been inclined to regard as of much force, but which we have not deemed it necessary to examine with a view to a definite decision in regard to them, as there might be an impropriety in our revising the doings of the Court of County Commissioners, thus incidentally presented ; and as we shall find the defendant’s title principally objectionable upon other grounds.

The petition for an assessment to open and make the road, and the notice ordered thereon, sets forth, that a road was laid out in 1832; whereas the Baring and Houlton road was laid out in 1833. The proprietors of the township, therefore, could not have been duly apprised, by the notice given, that it was in contemplation to lay an assessment upon the. township for the purpose of opening and making the road in question.

And, moreover, the year allowed for the making of the road by the proprietors, had not expired, when the petition was preferred. The road was laid out at March term, 1833 ; and the petition for the assessment was entered at September term, of the same year. The Court, in ordering notice upon it, were probably led into an error by the statement in the petition, that the road was laid out in 1832, and may have made the order for the assessment upon the same supposition. The Court, however, bad jurisdiction of the subject matter; and though they may have erroneously adjudged, in consequence of their misapprehension of a fact, the notice having been given as provided by statute, and the plaintiffs thereby having been made constructively privy, and therefore, in a manner, parlies to the proceeding, it may be improper for us, upon an incidental examination, to treat the proceeding as a nullity ; and, thereupon, to adjudge the sale to the defendant for that reason to be void.

But the county treasurer, who made the sale to the defendant, was a ministerial officer. His acts may be examined. Pa-rol testimony is admissible to afreet them. He was bound to a strict performance of his duties. The proprietors of the township, as well as the public, were interested in his doings. His acts should have been no otherwise in reference to the one than to the other. It appears that in making the sale he stipulated to give to the purchaser a credit of something like two, four and six months, for the purchase money. This he was not authorized by law to do. Ho should have sold for cash down. Public agents, authorized to make sales, in the absence of any express authority to the contrary, can do no otherwise. Those who deal with them are bound to take notice, that such is the case, and become privy to the erroneous proceeding. If one deals with a private agent, even, who has not an express or implied authority to sell on credit, the title, to any article purchased of such agent, will not vest in the vendee, against the principal of the agent. Public agents can seldom, if ever, derive authority from implication. The plaintiffs were interested, in this instance, in having the sale made for cash. They had a right of redemption. The sale on credit might well be believed to enhance the price ; so that they might, if the sale could be upheld, be compelled to pay a much greater sum for redemption than would otherwise be requisite for the purpose.

They might, besides, be under the necessity, in order to a redemption, to pay the amount to one, who had in fact paid nothing for the land; and who might subsequently fail to make payment for it; and so the land be subject to a re-sale, in order to obtain funds to open and construct the road. We think a sale made, as the one in question was, could not be valid against, the original proprietors. The plaintiffs therefore were entitled to damages.

But we are not satisfied, that the principle for assessing them, on the one side or on the other, as contended for by each, was correct. The true rule, we apprehend to be, that the plaintiffs should recover the value of the logs, as it was the moment after they were severed from the freehold. They then became a chattel, so that trespass de bonis would lie for them. This value would, perhaps, be somewhat greater than what,, among lumbermen, has obtained the name of stumpage, viz„ the value of trees standing

The plaintiffs, in their action of trespass, have not a right to-select any other place, than that where the injury was originally done, to enhance the value of the articles taken, although they might have been greatly enhanced in value by a removal to such other place. It is true they might have seized them wherever they could find them; and might have demanded them, at another place, of one having them there, and in an action of trover have recovered the value of them there. Baker v. Wheeler, 8 Wend. 505, and cases there cited. But in trespass the rule is believed to be different. In Morgan v. Powell, 3 Adol. & Ellis, N. S. 278, it is laid down, that the value of the property severed from the freehold is that, which it has immediately after being severed. That was an action of trespass de bonis for coal severed from a mass in the pit, and raised to the pit’s mouth, in readiness for sale. The plaintiff in that case insisted on being allowed to recover the value, as it was when raised to the pit’s mouth, and the judge at nisi prius so ruled; but the whole Court reversed the decision, and ruled as above. And the rule was said to be the same in the Exchequer. Martin v. Porter, 5 M. & W. 351. In Wood v. Morewood, it was said to have been held by Park, Baron, in an action of trover for coals so taken, if iho defendant took them without being conscious that he was doing wrong, they might be estimated as if they were to be sold by the plaintiff unsevered ; if otherwise, then at the price they would be worth when first severed. 3 Adol. & Ellis, N. S. 440, in a note. The jury reiurned the former and the decision was acquiesced in. This seems in conflict with the decisions in N. York; but shows the leaning of the mind, of a very distinguished jurist, towards the equity of not allowing exemplary damages to be recovered against one, not conscious of doing wrong, when he took the goods of another. And the defendant, in the case at bar, may well be believed to have been in this predicament.

Our opinion, not being exactly in conformity to either of the estimates of the jury, a new trial must be granted.