Smith v. Morse , 75 N.Y.S. 126 ( 1902 )

Fursman, J.:

Although the contract between the plaintiff and McKnight and Rosecrans did not in terms authorize them to cut and sell the timber .growing on the lot therein described, the evidence clearly established that the very intent and object of the agreement was that they should cut and sell the timber and out of the proceeds pay the plaintiff the contract price. In furtherance of this object they immediately began to. cut and sell the timber with the full knowledge and consent of the plaintiff.' In doing this they were not in any sense trespassers, but were cutting under a license from plaintiff. Assuming that this license was personal to them, they might, while it remained unrevoked, employ defendant to do the acts which they were thus authorized to do, so that, until the surrender by them of the original contract on the 31st of January, 1891, and the subsequent notice, to defendant, he was clearly acting within his right and was not in any sense a trespasser.

On the trial the plaintiff was permitted to prove the value of timber cut by defendant, not only after the surrender and notice, but also that cut by him while acting. under the original contract between plaintiff and McKnight and Rosecrans, and under the proof thus made it is impossible to determine what injury the plaintiff suffered by reason of the acts of defendant committed after his relation to the parties had been thus changed. Moreover, the learned trial court excluded all evidence offered by defendant tending to show that he acted in good faith, under a claim of right, and with the knowledge and consent of the plaintiff. This, we think, was error, for had he been allowed to prove that the plaintiff at the time of the surrender agreed that he might continue cutting under his agreement with them, lie would thereby have become a licensee of the plaintiff to that end, and no action could have been maintained against him for any thing done by him while such license remained unrevoked. The jury were charged by the trial court that they were to determine whether the defendant acted in the belief that he owned the property, and were assured that if he believed he had a right to do • this he could not be held for treble damages. No finding was made touching this question, but a general verdict of two hundred dollars ($200) was returned. As above suggested, it is impossible to determine from the evidence whether this verdict was based upon the acts of defendant after the license to cut had been revoked, or included also the cutting during the time the defendant was a licensee for that purpose, but the court nevertheless trebled the damages found by the jury and directed a judgment for six hundred dollars ($600).

This also, we think, was error. For these reasons the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred; Parker, P. J., in result.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.