Lyford v. Putnam , 35 N.H. 563 ( 1857 )

Fowler, J.

The case finds that in the winter and spring of 1854, and prior to the date of the obligation from the plaintiff to Hardy, the defendant sold, with the consent of Hardy, about five thousand feet of spruce timber, which Hardy had cut on the farm in controversy, and drawn to the Warren depot for the plaintiff, and that the defendant took the proceeds of the sale of said timber and appropriated the same to his own use. It does not find that either Hardy or the defendant had or claimed any license or authority, express or implied, for this selling and appropriating the timber cut from the farm and hauled to the depot for the plaintiff; and, taking for granted, what seems to be assumed in the agreement on both sides, that the plaintiff was the owner both of the farm and of the timber after it was cut therefrom, no reason has been suggested, and none occurs to us, why trespass for taking and carrying away and converting to his own use that timber, may not well be maintained against the defendant under the second count of the plaintiff’s declaration. It would seem to be a clear instance of the wrongful and unauthorized conversion by the defendant of the personal property of the plaintiff.

Nor do we find in the circumstances set forth in the case any sufficient objection, upon the authorities, to the maintenance of trespass quare clausum under the first count, for the timber cut and sold from the farm after the execution of the plaintiff’s obligation to Hardy. Although the condition of that obligation re-; cites that the farm had been bargained and sold to Hardy by the plaintiff, yet those words must be construed with reference to the whole condition; and the subsequent portion thereof clearly indicates that a regular conveyance was contemplated as the consummation of a contract, which, until such conveyance was executed, was only inchoate. Hardy, therefore, entered simply under an agreement to purchase the farm, with an implied license, resulting by law from such agreement, that he might in the mean time cut from the premises the quantity of spruce timber necessary to make the first payments under his contract with the plaintiff. The agreement to purchase and convey did not of itself amount to a license to enter, but, taken in connection with the stipulation contained in it, that payment was to be made in spruce timber taken from the land, we think the law would fairly imply from it both a license to enter and to cut from the farm the spruce timber necessary for that purpose. But such an implied license is to be. construed strictly, and any abuse of it, on well established general principles, makes the party guilty of such abuse a trespasser ah initio, so that, were this suit against Hardy himself, he could not justify the cutting of any thing except the quantity of spruce timber necessary to enable him to comply with the terms of his contract. The license implied by law for him to enter and hold possession for a justifiable purpose, must be expressly limited to that purpose. One who enters on land under a contract to purchase, acquires thereby no right to cut and consume the timber. An implied license to enter under such a contract, by no means implies a license to commit waste. On the contrary, one who enters generally under such a contract, has at most only the rights of a tenant at will; and if he neglect to perform his contract, and, without license for that purpose, cut timber, he is guilty of trespass. Jackson v. Clark, 3 Johns. 424; Jackson v. Moncrief, 5 Wend. 29; Suffern v. Townsend, 9 Johns. 36; Wendell v. Johnson, 8 N. H. 220; Clough v. Horsford, 6 N. H. 231; Bancroft et al. v. Wardell, 13 Johns. 489; Smith v. Stewart, 6 Johns. 46; Jackson v. Walker, 7 Cowen 637; Featherstonhaugh v. Bradshaw, 1 Wend. 135; Jackson v. Camp, 1 Cowen 610; Cooper v. Stower, 9 Johns. 331.

The provision that Hardy was not to cut or sell any spruce timber from the farm without the consent of the plaintiff, excepting what was delivered at the depot in fulfillment of the contract of purchase, until the farm was fully paid for, by fair legal construction meant precisely what the parties verbally agreed to after the execution of the obligation; namely, that there should be no cutting upon the farm, under the implied license to enter, except in furtherance of the fulfillment of the contract of sale. The supposition that a contract to purchase, with an implied license to enter and cut timber for the purpose of making payment of the purchase money, authorized the party entering to cut and sell off the timber generally at his pleasure, would authorize a party, who had contracted to purchase a lot with valuable buildings thereon, under the implied license to occupy and improve the premises in the mean time, to enter and pull down and dispose of the buildings, before making payment under his contract. Cooper v. Stower, 9 Johns. 332; Erwin v. Olmstead, 7 Cowen 229.

The most that can be implied, under the provisions of the obligation in this case, is a permission to the purchaser to enter in the mean time as tenant at will, and occupy the land in a reasonable manner, as a tenant at will might lawfully do, with an implied authority to cut and haul to the depot therefrom a sufficient quantity of spruce timber to fulfil the stipulations of the contract of purchase, but not to commit any act hostile to the interests of the vendor, or amounting to waste. Cooper v. Slower, ubi supra; Jackson v. Miller, 7 Cowen 747, where the authorities are collected and considered.

The contract shows, by withholding the conveyance until one half the purchase money should be paid, and stipulating for a mortgage of the premises to secure the payment of the residue, that the plaintiff relied on the premises contracted to be conveyed as security for the purchase money; and it would be most unreasonable to hold, that, from such a contract, any license was to be implied for Hardy, or the defendant under him, to strip the premises of their timber, and-thereby render them comparatively, if not altogether, worthless.

Hardy, then, having neglected to make any portion of his payments under the contract, and having also, as the case finds, through the defendant, cut and sold timber from the farm, without authority or license, express or implied, so to do, but in violation of any -rights he acquired by implication of law under the contract of sale, this action may well be maintained in both its counts. Whether, when in the former part of June, 1856, the plaintiff tendered to Hardy the notes given for the purchase money, and demanded the surrender of the contract of sale, the contract was at an end and the rights of Hardy under it terminated, it is not now necessary to consider. It is difficult to perceive why the neglect of Hardy to fulfill his portion of the contract, coupled with the commission of waste by cutting and selling off the timber, should not be regarded as tantamount to a refusal to perform on his part. But the view we have taken, which seems to be fully sustained by the New-York authorities, renders any discussion of these questions unnecessary.

As we are of opinion, that, upon the facts transferred to us, this action may be maintained ; according to the agreement of the parties, the case must be discharged, and the action stand for trial at the trial term of this court.