Small v. Gilman , 48 Me. 506 ( 1860 )

The opinion of the Court was drawn up by

May, J.

The plaintiff’s declaration, in substance, alleges that the defendant contracted with him for a permit to cut timber in the winter of 1856 and 7, on all of a certain tract of land then owned by the defendant, in township No. 4, range 3, west of the east branch of the Mattawamkeag, excepting so much as he had before engaged to one Josiah Jellerson ; and that the defendant, at the time of making said contract, represented and stated to one Mansur, the plaintiff’s agent, with whom said contract was made, what were the limits of that part of said tract which had been engaged to Jellerson, and upon which Jellerson had, or was to have a permit for two horse teams; and further, that the plaintiff, relying upon said representations, and under the expectation that he was to have, for his operations, all the defendant’s land in said township,’ except what had been definitely pointed out as the part engaged to Jellerson, did, on the 14th of October, 1856, take a permit of the defendant, of all his said tract, “ excepting that part engaged to Jellerson,” supposing that he thereby acquired the right to operate with two six ox teams, or their equivalent, upon all the tract in said township belonging to the defendant, except what had been represented and pointed out to Mansur, his agent, as the part that had been engaged to Jellerson, and did then and there bind himself in said permit to take off the ensuing winter not less than one million feet of timber, board measure. The plaintiff then alleges that the defendant, being unmindful of his contract, and in violation thereof, did,' on the 3d day of November, then next, give a permit to Jellerson for t.wo or more horse teams, -which included a much larger part of said tract than the part which had been represented and pointed out by the defendant as the part previously engaged to Jellerson; and that Jellerson thereupon entered upon that part which had not been so pointed out, and which the plaintiff supposed had been and was included in his permit, and cut and carried away large quantities of timber, to the great injury of. the plaintiff and his operations, with the knowledge and approval of said defendant. The plaintiff then sets out more specifically what he did and prepared to do, under his permit, and the damages which he sustained by the act of the defendant in granting .to Jellerson the subsequent permit as aforesaid, and from the interference of Jellerson with his rights by his acts and proceedings under the same.

To this declaration the defendant pleaded that he never promise^, upon which plea issue was joined. Roth parties, therefore, notwithstanding all that has been said in argument about the nature of the action, have treated it as an action of assumpsit. The trial proceeded upon this ground, and to this nó exception has been taken. The declaration alleges no warranty, and sets forth no allegation of fraud or intentional deceit: The only ground of action set forth, if any, consists in the fact that the defendant misstated the limits of the land which he had before engaged to Jellerson, and after-wards gave Jellerson a permit covering more land than he had represented as the part engaged to him, -and that Jellerson afterwards entered thereon with the knowledge and approbation of the defendant, and did acts which were greatly prejudicial to plaintiff.

From the bill of exceptions, as presented, we must presume that the evidence applicable to the various allegations contained in the writ, was submitted to the jury with appropriate instructions, unless the specific instructions which were requested, ought to have been given, or those which were given instead of them are erroneous.

The first requested instruction relates wholly to the effect of the false representations and statements said to have been made by the plaintiff, at the making of the contract, even though the jury should find that they were made from misrecollection or mistake. The presiding Judge was requested-to instruct the jury that such representations, “ if false, would entitle the plaintiff in this action to recover such reasonable and proximate damages as he had shown that he suffered by it, whether such representation was made from misrecollection or mistake.” The word “ whether,” in this request, seems to have been used in the sense of “if” — or, perhaps, the words “ or not” were accidentally omitted after the word “ mistake.” The Judge appears to have so understood the request, and thereupon, instead of complying with it, proceeds to instruct the jury that this action cannot be maintained, if the jury find such misrepresentations made by the defendant, as contended for by the plaintiff, unless they also find that such misrepresentations were fals”e, and made by the defendant with an intention to deceive and injure the plaintiff.

The writ, as we have seen, contains no promise which such representations, if false, and innocently made, could possibly tend to prove. It is nowhere sufficiently alleged that the defendant promised the plaintiff that any specific portion of the defendant’s tract of land in township No. 4, range 3, was the portion which had been previously engaged to Jellerson. Proof, therefore, that false representations were made by the defendant through misrecollection or mistake, could have no tendency to support the plaintiff’s declaration in his writ, if it is to be regarded as a declaration in assumpsit. This requested instruction was, therefore, rightly withheld, and the plaintiff has no cause of complaint on account of the instructions which were given, because these gave to the plaintiff the full benefit of the false representations relied on, if made with a design to defraud or deceive, in the same manner, and to the same extent as if his action were an action on the case in the nature of deceit. They were more favorable to the plaintiff than he had a right to expect, when we look at the promises alleged in the writ, and consider that both parties had framed their pleadings solely with reference to them. The question does not arise in this case, whether an action of assumpsit can be maintained upon a promise, arising out of mutual mistake and misapprehension of facts in regard to the subject matter of a contract, executed in part or in whole, whereby one party has been greatly injured, because no such promise is alleged. The variance between the proof of the facts recited in the request, and the allegations in the writ, assuming that the action is assumpsit, as the parties have treated it, is fatal. There appears to be no ground for the exceptions, on account of the non-compliance of the Judge with this particular request, or by reason of the instructions which were given.

But the presiding Judge was further requested to instruct the jury that, if the 'defendant gave to the plaintiff a permit which covered a certain territory, and shortly afterwards gave to Jellerson a permit covering a part of the same territory, in express words or by implication, under which Jellerson cut timber embraced in the plaintiff’s permit, whereby the plaintiff suffered damage, he is entitled to recover for such damages in this action. This requested instruction was properly withheld, and for the same reasons stated with reference to the other. The writ alleges no promise that the defendant would not permit others to cut upon the same land upon which the plaintiff was to operate. It is true that whatever rights the plaintiff had acquired by his permit, the defendant could not properly interfere with; and if he did so, or permitted others, with his knowledge and approbation, so to interfere, he might be held liable therefor in an appropriate action. Such unlawful interference, however, would not, if proved, tend to support any promise alleged in the plaintiff’s writ. Such acts would be tortious, and we see nothing in the writ which made it the duty of the Judge to comply with this request.

Again, it is urged that there was error in excluding a letter written to the plaintiff, by Mansur, while acting as his agent, and immediately after he had concluded the bargain with the defendant, for the plaintiff’s permit. It does not appear that the letter contained any thing material, nor for what purpose it was offered. It is said, in the argument for the plaintiff, that it contained ■ an account from Mansur of what he, as his agent, had accomplished. It is not perceived upon what ground such a letter could have been admissible. It is a mere declaration of the agent as to what acts he had performed, and about which he was permitted to testify fully. It is not, as now ' contended, a part of the res gesta. It relates to transactions that were past. Such declarations of an agent, whether in writing, or parol, are but hearsay. If it was offered for the purpose of corroborating Mansur as a witness, it was clearly inadmissible for that purpose.

That the writ, judgment and docket entries in a former case of Jellerson against this plaintiff and others, which was an action for the alleged interference of the present plaintiff with the rights of said Jellerson under his permit, were improperly excluded, is not now contended. That they were properly rejected is beyond question. The result is, that there being no error in the matters excepted to, the defendant is entitled to judgment on the verdict.

Exceptions overruled and Judgment on the verdict.

Tenney, C. J., Rice, Appleton, Cutting and Kent, JJ., concurred.