Lee v. Meeker , 2 Wis. 487 ( 1853 )

By the Court,

Crawford, J.

Without pointng out the instances in which improper and irrelevant testimony was permitted to be given on the trial of this cause in the County Court, we must reverse the judgment because competent and material evidence on the part of the present plaintiffs in error was erroneously excluded on the trial below.

•The injury complained of consisted in the partial removal of a building situate upon the lands of the ¡defendant in error, which lands, at the time of the alleged injury, were in the possession of John Hadley either as lessee and tenant under Miss Meeker (the defendant in error,) or under an agreement between and the said Hadley for the purchase of said lands. The building had been erected by Hadley upon the lands.

"Whether Hadley was in possession by virtue of an agreement to purchase, or by virtue of a lease, is immaterial in the present aspect of the case. The plaintiff brought her action for certain acts which she claims were injurious to her, and it would certainly seem reasonable and legal to permit the defendants to prove that the very acts of which the plaintiff complains were done by her permission and authority. The defendants called Hadley as a witness, and among other questions propounded to him was the following: “ Hid you have a license or permission from the plaintiff to remove said house ? if so, state when it was given, and what that license or permission was.” This question was objected to by plaintiff’s counsel, and the court would not permit the question to be answered. In excluding the evidence thus sought to be elicited, the court erred. Before the question was asked, there had been some evidence given upon the examination in chief of three of the plaintiff’s witnesses, (Lawton, Kalk and Any,) tending to show that the house was removed by direction of Hadley, and that such was the case, seems to be established by Hadley’s subsequent testimony.

Now the evidence which the defendants attempted to produce, and which the court refused to receive, was not only pertinent, but calculated to defeat the plaintiff’s cause of action. It was an offer to show a license, authority, or permission from the plaintiff in the action, to Hadley to remove the building, and for aiding in doing so, by directions of Hadley, the defendants were sued. If Hadley had been sued, he could most assuredly have shown a license to him, one had been given, as a defence ; and if these defendants acted for Hadley as his servants, or by his direction, we know of no principle of law which can pre-elude them from setting up a justification as effectually under the license to Hadley as he could.

The license in this case may have been in writing, or it may have rested in parol, but it would be efficacious in either form. Licenses to do a particular act or series of acts on the land of another without passing any estate in the land, may be created by parol. They do not in any degree trench upon the policy of the law which requires that bargains respecting the title or interest in real estate shall be by deed or in writing. Cook vs. Stearns, 11 Mass. 533; French vs. Owen, 2 Wisconsin Rep. 250.

If it be true that Hadley had a license or permission from the plaintiff in this action to remove the building in question, and that the defendants, in assisting in the removal, acted by direction of Hadley, or as his servants, and in this action they are sought to be held liable for so assisting in the removal of the building, they have a right to give evidence of such a license, and to avail themselves of any protection which may arise therefrom.

As the case must be tried anew, we do not think it necessary to examine the other errors insisted upon. The judgment must be reversed, and a venire facias de novo awarded.