Emery v. King , 35 Vroom 529 ( 1900 )

Per Curiam.

The third assignment discloses á reversible error.

Plaintiff’s right to the logs which were the subject of his action of trover and which he had cut on the lands of one Stokes, depended upon a license to cut given, by one Blazer, as agent of Stokes. Blazer was called by plaintiff, and on direct examination testified that he had authority from Stokes-to license the cutting by plaintiff. On cross-examination Blazer admitted that the authority had been conferred by a writing signed by Stokes and in Blazer’s possession. The writing was not produced.

A motion to strike out Blazer’s evidence as to authority to-license plaintiff to cut was denied by the judge sitting as a Circuit judge, on the ground that the objection came too late..

This was erroneous. Assuming that authority conferred! by parol upon Blazer would justify the license to plaintiff to-cut wood on the principal’s land, as soon as it appeared that the authority was conferred by writing and that' the writing was in existence and could be produced, the writing was the sole evidence by which plaintiff’s case could be supported. It was error to admit evidence of its purport.

The judgment must be reversed.