Stone v. E. & T. Fairbanks & Co. , 53 Vt. 145 ( 1880 )

The opinion of the court was delivered by

Veazey, J.

The plaintiff’s evidence tended to show that when he was cutting the logs Edwards saw him, and knew he was cutting them, and made no objection, and knew he was cutting them under a contract with Cota. Edwards denied that he knew what the contract was, or that the plaintiff had a lien on the logs for the cutting. It does not appear that Edwards ever asserted any claim to the logs under the provisions of his deed to Cota, until the plaintiff had sold them to the defendants, and drawn them to their mill.

This suit is brought to recover of the defendants for the logs sold to them, to the extent of the plaintiff’s claim for cutting; and Edwards has assumed the defence on the ground of his lien as provided in his deed to Cota. The plaintiff claimed in the County Court that if Edwards knew of his contract with Cota, by which the plaintiff was to have a lien on the logs to secure him for cutting them, and allowed the plaintiff to cut and draw the logs into the mill without objection, he would be estopped from*Setting up any title to them. The court held otherwise ; to which the plaintiff excepted. =•

McKellop v. Jackman, 50 Vt. 57, was a case where the plaintiff bought wood of a mortgagor, which was cut after condition broken. The plaintiff’s evidence tended to show that the defendant, who was the administrator of the estate of the deceased mortgagee, had knowledge before attaching the wood that the plaintiff had bought it of the mortgagor, and claimed to own it, and that the defendant was present at one time and saw the plaintiff and the mortgagor cutting the wood, and made no objection. The court held that such evidence, if believed, would support an estoppel upon the administrator claiming the wood ; and that it was error not to submit to the jury the question, whether the plaintiff had a title to the wood, that the defendant could not question.

In this case-Edwards had sold the land to Cota by a conditional deed, to the effect that if Cota should not pay the purchase price, $3000, specified in several notes, payable from year to year, the deed was to be void. The deed then contained this clause : “ And all the wood, timber and lumber of all kinds are to be held, and all the crops raised on said land to be held by said Edwards for the payment of said notes until fifteen hundred dollars are paid.” It would seem that the parties to the deed must have contemplated that these payments should be met by the proceeds of the products of this land; and it is difficult to conceive how such proceeds could be realized without some outgoes. This is alluded to only as a circumstance showing the situation of those parties. Under the circumstances Cota employed the plaintiff to cut a large number of logs, and gave him a lien on the logs for the cutting, the plaintiff supposing the land belonged to Cota.

If said provisions of the deed gave Edwards the right to avail himself of the logs cut on this land, including the expense of cutting and drawing, it was a right which he could waive by parol; and one which he might naturally prefer to waive, to the extent of the expense of cutting, in order that the cutting might be done ; and this would be a good consideration for such waiver; especially as between him and a third person doing the work. If he made such a waiver he would be estopped from claiming contrary to it. We think the plaintiff’s evidence tended to show such waiver ; and that this question should have been submitted to the jury.

Exception was also taken to the admission in evidence of the copy of the deed to Cota ; and this and other points are pressed in argument; but as the bill of exceptions does not seem to have been drawn with a view to fully present those points, and as a decision of them on the bill as it stands would apparently be of no use in another trial, it is thought best not to pass upon them.

Judgment reversed, and new trial granted.