Pierrepont v. Barnard , 5 Barb. 364 ( 1849 )

By the Court, Gridley, J.

We think a new trial must be granted, for the errors of the judge upon the trial of the cause; and we will very briefly assign our reasons for this opinion.

The action was trover, for the conversion of a large quantity of pine lumber, which was seized by the defendant and sold upon a judgment against John R. and Hiram Woodworth. The premises on which the timber grew, from which the lumber was manufactured, was known as lot 155 in Richland, in the county of Oswego. This lot was, on the 1st day of August, 1840, contracted by the plaintiffs to be sold to the said Woodworths, at the purchase price of $5530, payable in several instalments. The agreement for the sale was executed by Wm. C. Pierrepont, by virtue of a power conferred on him by the last will of Hezekiah B. Pierrepont deceased. This contract contained a clause by which the said Woodworths covenanted not to “ cut or suffer to be cut, for sale, any timber fro.in the said land, without the consent or approbation of the said party of the first part, or his attorney, first had and obtained in writing.” This condition was also expressed in a memorandum endorsed on the contract, of the same date, by which it was agreed that the contract might be renewed if the interest should be kept punctually paid up. No written permission to cut timber was ever given; and we are of the opinion—

I. That the judge erred in admitting evidence of a permission by parol. It is true that a payment was transferred from another contract to this; but that was done at the request, and for the benefit, of the Woodworths.

It will be borne in mind that this action is not trespass against the party who cut the timber by the consent of one of the plaintiffs; but an action of trover, brought, after notice by the plaintiffs of their claim to the lumber as their property, and is founded on a subsequent conversion of it by the defendant. The question, therefore, is whose was the title to the property i in the lumber ? The defendant’s title is derived under that of the Woodworths, and can be no better than theirs. How then did the property in and title to, the trees, out of which this lumber was made, pass to the Woodworths? Those trees were real estate, and could not pass, except by an instrument in writing. This proposition was thus established in Green v. Armstrong, (1 Denio, 550.) And while that case continues to be the law of the land, and the identity of the trees can be traced into the lumber, and the contract has not been performed by the payment of the purchase price, the title to the property continues in the original owner, and he may reclaim it in its altered state. We speak of the legal title and the rights of the parties at law, irrespective of any relief which might be granted by a court of equity, upon an offer to pay the purchase price, in analogy to the relief granted in the case of a parol contract for the sale of land, where the purchaser founds his claim upon a part performance of the agreement. In this class of cases relief! is granted in chancery for the reason that none exists at law. So in the case at bar; the contract (if indeed there were one resting on a good consideration) is void by the statute of frauds, and conveyed no title to the trees; and any equitable rights which the Woodworths derived from the expenditure of labor on the timber should be asserted in a court of equity, where the court could compel them to do equity as the consideration of receiving it. Of the application of such a rule t.he plaintiffs need not complain ; for they would gladly relinquish their legal right to the lumber in question, if they could be paid for the land, or if the avails of the lumber should be applied, as in justice they ought to be, to reduce the amount due on the contract of sale. This, it seems to us, would be the conclusion to which the law would bring us, if this parol license were, as it has been argued by counsel, a contract founded on a consideration. But we think it is a parol license, without consideration, which makes the case much stronger against the defendant. Upon the validity and effect of this license, as affected by the statute of frauds, see the case of Mumford v. Whitney, (15 Wend. 380,) and particularly from page 383 to the end of the opinion, where many of the conflicting cases are ably reviewed.

Again ; by the very terms of the written contract, the parol license conferred on the Woodworths no power to cut the timber in question; and this they well knew when they acted undev it. And this consideration alone removes all just ground of complaint on their part. The admission of evidence of a parol license,defeats the intention of the vendor in requiring it to be in writing. The object of requiring written evidence of k license to cut timber, was to secure the plaintiffs against the consequences of mistakes and frauds and perjuries. The object was the same with that which induced the legislature to enact the statute of frauds itself; and there never was a case which more strikingly illustrates the wisdom of such a provision, than the one now under consideration. In this case, upon parol evidence of the loosest and most unsatisfactory character, the verdict of a jury has left the plaintiffs remediless for a loss of between twelve and fifteen hundred thousand feet of pine timber, constituting the principal value of the lot from which it was taken. Against such a loss they had provided an ample protection in their contract of sale. The plaintiffs foresaw that a parol license might be misunderstood ; that if there were important conditions annexed to it, those might be forgotten; and if the license were only extended within particular limits, or as confined to a particular quantity, those limitations might not be borne in mind by a rapacious purchaser; and, in fine, that the most important rights of the owners of the lands, whose value consisted mainly in the timber, might lie at the mercy of mistaken or unscrupulous witnesses, and therefore they imposed the obligation on the purchasers, in the very contract of sale, to cut no timber without a written license. And we think the judge at the circuit erred in depriving them of the advantages secured by this stipulation.

II. But if we are mistaken in this view of the case, and if the ground assumed by the judge at the circuit should be held to be tenable, viz. that if a parol license were given, and relying on it the Woodworths had expended labor and money on the faith of such license, the plaintiff should be estopped from denying it, still upon the facts of this case the plaintiffs were entitled to recover nearly the entire value of the lumber converted by the defendant.

Upon the testimony of Hiram Woodworth it is certainly doubtful whether Mr. Pierrepont ever intended to give him any definite license to cut any timber until an arrearage of some $300 or $400 was paid. But cvt all events there is no pretence for saying that he ever gave any license to cut more than the Woodworths requested, which was limited to a quantity sufficient to stock the mill, and was expressly declared to amount to five or six, or at most seven hundred thousand feet. Now the cutting of any more than the highest estimate thus given, was a gross fraud upon the absent owners of the land. Had a request been made to cut double that amount, there is no reason to suppose that the agent would have given his consent. The Woodworths therefore had no right to cut a stick above, the estimate presented to Mr. Pierrepont, without a new license. That amount, however, or nearly as much, was cut and sawed into boards, sent to market and sold, before the controversy arose about the timber in question. This timber was cut after-wards, and was over and above the quantity to which the license, should be held to apply. The difference, if any, was comparatively small, and the plaintiff was undeniably entitled to recover-a sum amounting to near $2000.

We think the right to this extra quantity of timber may be, tested by a resort to the rules of special pleading. To the declaration we will suppose the defendant to have pleaded a parol license to the Woodworths to cut the timber in question, and a sale of the lumber on an execution in favor of the defendant against them. To this plea the plaintiffs would reply, that the parol license was void by the terms of the contract. The defendant must then rejoin, that the Woodworths acted on the license and expended money on the faith of it, and therefore the plaintiffs should be estopped from denying it. To this we think the plaintiffs might (irrespective of the question of a departure) successfully surrejoin, either 1st. That as to this quantity of timber, there was no license at all, the entire quantity to which the license applied having been previously cut;. or, 2dly. That the license was procured by false and fraudulent representations, and was grossly violated and abused afterwards, and was therefore void.

Estoppels are not favored in the law; and an estoppel inpais is never allowed to be used as an instrument of fraud; but is to be resorted to solely as a means to prevent injustice—always as a shield, but never as a sword.

There are other important considerations which may be urged against the right of the defendant to retain this verdict ; but we have not time to discuss them. We are satisfied, for the reasons we have givén, that there should be a new trial. And in granting it we only follow the circuit judge, who himself allowed a new trial, upon a more deliberate examination of the questions involved in the case than he could give during the course of a trial at the circuit.

A new trial is granted; costs to abide the event.