
    Francis Ano, Resp’t, v. Benton Turner, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    Contracts—Performance of—What is sufficient.
    The defendant- contracted with the plaintiff to pay him, at an agreed rate, for logs of a certain standard, to be cut and delivered to him, specifying the limits of the tract from which they were to be cut. The plaintiff, in performing the work, unknowingly cut a portion of the timber from lands of the state, in violation of statute. The defendant, being aware of this fact, ordered the logs to be delivered, and acquired the state’s title to them. Held, that the plaintiff, not having knowingly violated the statute, and the defendant having directed the logs so cut to be delivered, the plaintiff was entitled to the compensation agreed upon.
    
      Appeal by the defendant from a judgment entered upon the report of a referee appointed in said action in favor of the plaintiff.
    
      Beckwith, Barnard & Wheeler, for app’lt; B. Corbin, for resp’t.
   Ingalls, J.

This action is brought by the plaintiff to recover of the defendant compensation for cutting and delivering a quantity of logs. There is really upon this appeal but one question involved in the controversy, which is whether the plaintiff was entitled to compensation for cutting and delivering a portion of such logs, which are claimed by the defendant to have been taken by the plaintiff from lands belonging to the state of New York, in violation of section 74, page 209, volume 1, of the Revised Statutes (Edmund’s edition), which provides a penalty of twenty-five dollars for every tree which shall be cut and carried away by any person from such lands.

The logs were cut under a written contract entered into between the parties, as follows:

“Memorandum of agreement made and entered into this 26th day of September, 1884, between Francis Ano, of Cold Brook, Clinton county, N. Y., of the first part, and B. Turner, of Plattsburgh, N. Y., of the second part, as follows, viz.:

“The party of the first part agrees to cut, skid and deliver to the party of the second part, during the coming winter, on the north branch of the Saranac river, below the Goldsmith saw mill, in a good workmanlike manner, three thousand standard of merchantable market spruce and cedar logs; said logs are to cut on lots 7, 8 and 9, southeast quarter of lot 116, and on acres in lot No. 30, township 9, old military tract; the balance of the logs on said lots are to be delivered the following winter.

All of said spruce and cedar logs are to be cut fourteen feet long and as small as seven inches at the top end. The dry and dead timber is to be * * * taken clean as far as suitable for market logs; defective logs are to be measured so as to make them equal to market logs * * "" said logs are to be measured by the twenty-two inch standard, and for each and every twenty-two inch standard log delivered, the party of the second part agrees to pay the party of the first part one dollar and sixty cents, in cash, on the first of each and every month during the time of delivery; said logs are to be measured on skid ways as often as once in two weeks. If lumber roads are cut to said skid ways in good workmanlike manner, and if skid ways are put up in good workmanlike manner, and for each and every twenty-two inch standard log piled on said skid ways, the party of the second part agrees to advance the party oí the first part, on the first of each and every month, sixty cents per standard. It is further understood this contract is, except to 800 logs by count in northeast corner of lot 9.

his

FRANCIS X ANO,

mark.

B. TURNER.

Witness, Oliver Sharron.

The referee made the following findings of fact, which are incorporated in his report:

Second. That the plaintiff during the said winter, and intending to pursue said contract, cut and drew to the said river, below said pond 3,213 and 94-1000 standard logs for the defendant.

Third. That a portion of said logs (490 standard) were cut by plaintiff for defendant, on part of said lot 30, not belonging to defendant, but to the state of New York.

Fourth. The plaintiff did not know at the time he cut those logs on state lands that the land belonged to the state.

Fifth, That the defendant had, before he made the aforesaid contract with plaintiff, caused the whole of said lot thirty to be marked around, and had directed the plaintiff, in cutting the logs, to keep within the line he had caused to be marked around said lot.

Sixth. That while said logs were being cut, or after they were cut, claims were made to the plaintiff to said logs on behalf oí the state, of which claims the defendant was informed by plaintiff, and the defendant, notwithstanding said claims, directed plaintiff to draw and deliver said logs to him, the defendant.

Seventh. That the defendant, after being notified of the claims on behalf of the state to said logs, acquired the title of the state thereto, and admitted to the plaintiff that he was indebted to him for the cutting and delivering the same at the rate of $1.60 per standard.

The evidence in regard to the facts above found, is very conflicting, and we conclude that it does not preponderate so decidedly in favor of the defendants, to require a reversal of judgment upon that ground. It cannot be said, we think, that any fact material to the plaintiff’s cause of action is unsupported by competent evidence, and, consequently, the plaintiff’s case before the referee was not unproved. It was assailed by evidence produced by the defendant, which created a decided conflict upon the material questions of fact involved, and the referee was required to weigh the evidence and to draw inferences therefrom. In such a case, the determination of the referee should not be disturbed, unless the appellate tribunal can see very clearly that injustice has been done, which we are persuaded is not this case. Cheney v. N. Y. C. and H. R. R. R. Co., 16 Hun, 415. It seems fairly inferable from the evidence that when Miller, who assumed to represent the state, in regard to the cutting of timber upon its lands, on the 25th January, 1885, that the logs in question had been cut by the plaintiff, and the referee has found, in substance, that the defendant, after being notified of the claim, on behalf of the state, directed the plaintiff to remove the logs. It further appears that at some period, which is not particularly stated, the defendant purchased all the right and interest of the state in such logs. Nor is it shown what price he paid therefor, We think the facts justify the assumption that such purchase was not made by the defendant, until after the plaintiff had bestowed his labor on the logs, under the contract. From the defendant’s evidence, we learn that he purchased the interest of the state in the logs in question, but through whom he does not state with any degree of certainty, nor does he state the price paid, nor the time of such purchase.

We are, therefore, not informed whether his purchase of the logs was sufficiently favorable to enable him to retain the price claimed by the plaintiff for cutting and delivering the same. We, however, infer that such was the case from the fact that the following statement contains, as we understand it, the price for cutting and delivering such logs:

“ Plattsburgh, N. Y., April 7, 1885.
“Francis Ano,
1884. In account of Benton Turner, Dr.
Nov. 2, to check, Merchants’ Bank............. $500 00
Dec. 15, to cash............................... 500 00
Dec. 15, to check.............................. 100 00
Dec. 29, to cash............................... 100 00
1885.
Jan. 16, to cash............................... 500 00
Feb. 16, to three bbls. flour, at $6.00 ........... 18 00
Feb. 17, to four bbls. pork, at $18.00........... 72 00
Feb. 23, to cash....'........................... 600 00
Feb. 23, one bbl. flour......................... 6 00
Feb. 26, to six bbls. flour, at $6.00............. 36 00
March 6, to cash...... 500 00
March 14, to check............................ 500 00
March 14, to paid, John Collins, horse.......... 3 00
March 14, to use of cutter..................... 1 00
March 14, to paid, N. Ellen wood........'....... 3 00
March 14, to cash............................. 3 22
April 7, to two checks......................... 1,000 00
April 7, to balance............................" 671 06
1885. Credit.
March 14, by 2,861 387-1000 state logs, at $1.60.. $4,578 88 March 14, by 189 326-1000 state logs, at $1.60 ... 303 40
April 7, by 133 349-1000 state logs, at $1.60 ..... 231 00
$5,113 28
By balance................................... $671 06

It appears that all the logs had been cut and delivered previous to the making of such statement by the defendant, and we do not perceive that at that time the defendant questioned the right of the plaintiff to claim compensation for the labor bestowed upon such logs upon the ground that they had been cut upon the land of the state in violation of such statute, or for any other reason.

' It seems verv clear that when the agreement was made, the plaintiff did not intend to cut logs upon the land of the state of Hew York, or upon land owned by any person other than the defendant; and, consequently, there could not have been any intention upon his part to violate the statute referred to, and no taint attached to the contract. The referee has found that the plaintiff did not know, at the time he cut the logs on the state land, that the same belonged to the state. And we think the evidence justified such finding. It seems, therefore, that at the time the agreement was entered into, and also at the time the logs were cut, that the plaintiff did not intend to cut timber upon the land of the state, or to violate said statute. After the defendant was informed of such cutting, he directed the plaintiff to remove the logs, at the time claiming that they were cut upon his own lands. If the state had any right to proceed against the plaintiff, under such statute, and recover the penalty, it did not assume to enforce the same against him. And, in the light of all the facts and circumstances of the case, we fail to perceive upon what ground, legal or equitable, the defendant can be allowed to defeat the claim of the plaintiff for compensation, for the labor bestowed under the contract, for cutting and delivering the logs, at, the request and by the direction of the defendant. Assuming, as I think we should, under the findings of fact made by the referee, supported as they are by evidence, that the plaintiff entered into said contract in good faith, without any intention of trespassing upon the lands of the state, and that he cut the logs without any knowledge that they were upon such lands, and removed the same by the direction of’ the defendant, who claimed that they had been cut upon his land, we think the case is brought within the principle declared in Coventry v. Barton (17 Johns., 142), which was again recognized in Stone v. Hooker, 9 Cow., 154. The general doctrine contended for by the counsel for the appellant, in his able argument, is doubtless sound when applied to a proper state of facts, but, we think, fails to reach the case we are considering. It would seem most unreasonable to hold that the plaintiff should be deprived of compensation for labor bestowed under a contract unobjectionable in itself, merely because in executing it, he cut a portion of the logs_ upon the land of the state, not intending to do so, and having no knowledge that he he had entered upon such lands. Especially so, when the acts were all performed by the plaintiff under the direction of the defendant. Bloxsome v. Williams, 3 Barn, and Cress., 232; Cannan v. Bryce, 3 Barn, and Alderson, 179. In the case last cited, the court remarks: It will be recollected that I arn speaking of a case wherein the means were furnished with a full knowledge of the object to which they were to be applied, and for the express purpose of accomplishing that object.” The examination of this case has convinced us that no sufficient ground has been established for a reversal of the judgment, and the same must be affirmed with costs.

Landon, J., and Learned, P. J., concur.  