Gillerson v. Small , 45 Me. 17 ( 1858 )

The opinion of the Court was drawn up by

Tenney, C. J.

The permit, from Samuel A. Gilman to the plaintiff, was dated Nov. 3, 1856, and gave the right, on certain conditions, to the latter to cut and haul pine and spruce timber standing on the land therein described. It was in pursuance of a verbal agreement, made the September previous. The permit from said Gilman to the defendant Small, dated Oct. 14, 1856, conferred the right to cut and haul timber on a tract of land, embracing that referred to in the permit to the plaintiff, but excepted that part engaged to plaintiff. To the portion, therefore, excepted, Small had no right and he could not dispute the right of the plaintiff, under the permit of the latter, provided the permit to him applied to the land to which the verbal agreement related.

It was contended .by the defendants, that the line claimed by the plaintiff, as the south line of Gilman’s tract, was not so far south, by the fourth part of a mile, as the true line thereof; and, hence, the plaintiff’s north line was the same distance further south than he asserted it to be. This proposition of the defendants was denied; and the plaintiff introduced evidence, subject to objection, that the south line of Gilman’s tract was the north line of the public lots in the same township. The plaintiff further introduced the record of the location of the public lots, also subject to objection, to show their situation upon the earth. The record was the proper evidence of the location of the public lots, and evidence of the relative situation of those lots, and of the land referred to, in the permit to the plaintiff, was admissible.

For the purpose of showing the territory intended to be included in the permit to Small, and that intended by the exception in the same permit, the defendants introduced Rufus Mansur, as a witness, who had acted as an agent for Small, and who obtained the permit for him from Gilman; and he testified, that he had no knowledge of the location of the land described in the permit, except that derived from the plans, and from said Gilman, in relation to boundaries and limits thereof. He was asked, what were the limits described in Small’s permit; what was the territory embraced therein ; and to show it to the jury, on a plan before him, which was used, as chalk only, at the trial; and, also, the territory excepted in the permit to Small. The evidence, so offered, was excluded, upon the plaintiff’s objection.'

The statements of Gilman to the witness Mansur could not bo competent to affect the plaintiff. And the plans, even if taken by order of Court, were unintelligible of themselves; and the defendants were not prejudiced by this ruling, and the acts of Gilman, at the same time, were equally improper.

The testimony of Mansur, offered by the defendants, and excluded on the plaintiff’s objection, that, when the agreement was made between Gilman and Small, Mansur acting as the agent of the latter, Gilman marked on the plan then before them, but not exhibited in Court, the limits of the territory to which the permit was to apply, to be given to the plaintiff afterwards, was incompetent evidence, for the reasons already given.

The written permit to Small was the evidence of the extent of his rights thereunder, and all verbal negotiations and agreements, prior to its execution, tending, to vary or control the same, were inadmissible.

The letters of Gilman to Mansur, of October 9, and October 11, 1856, — of Gilman to Small, of October 25, 1856,— and from Mansur to Small, with sketch thereon, of October 20, 1856, could not legally affect, in any degree, the rights of the plaintiff, and were properly excluded.

The instruction requested to be given to the jury, that the plaintiff could not recover, if certain conditions contained in the permit to him had not been fulfilled, became immaterial after the verdict, in any view of the subject, the jury having found that those conditions were waived by Gilman.

The Court was requested to instruct the jury, that one trespass must have been committed prior to the date of the writ, in which all the defendants participated, by counsel, advice, or act, or otherwise, or some one time, when all were trespassers, proved, before a verdict could be found against any of the defendants. This instruction was properly withheld, and the instruction that it was competent for them to find against one, or more, or all the defendants, as the evidence might require, was correct. The Judge, under this request, continued and instructed the jury further, that they could find only against such defendants as were proved to have been concerned in carrying on the operation by which the plaintiff was injured, &c., and if any one or more was not proved to have been engaged in such operation, and in carrying on the same, prior to the date of the plaintiff’s writ, they should find such defendants not guilty. We see no error in this.

The instruction requested was upon the assumption, that the rule applicable in an action of assumpsit was the true one in this case, that, if one defendant is not found liable, the verdict must be in favor of all the defendants, which cannot be admitted.

It is, however, insisted that the instruction given under this request authorized the assessment of entire damages against all the defendants, who were guilty of any act of trespass, though some of them may have participated only in a small part of the cutting and hauling complained of. The attention of the Judge was not brought in the request, to the case which the defendants’ counsel presents in argument, making the distinction relied upon, and the instruction given was not predicated on such distinction. Exceptions overruled.

Rice, Appleton, Hathaway, Cutting and Goodenow, J. J., concurred.