
    Atwood Harmon vs. Frederic W. Harmon and trustee.
    
      License to cut growth may he inferred. Evidence.
    
    License to cut wood and timber may be-verbal or it may be inferred from circumstances.
    The defendant in an action of trespass guare clausum relied upon a power of attorney given him by plaintiff. The plaintiff claimed that a previous power to his brother had been revoked and this one given to his father (the defendant) by reason of false representations contained in letters from several persons, to the effect that his brother was trying to swindle his father out of all his property: that Ms father was destitute, and that plaintiff had better put the real estate into Ms father’s hands; held, that testimony relative to the peeuniary circumstances of the father at the time these letters were written was properly rejected.
    “On exceptions, the court will not consider the findings of the jury as to whether the verdict is or is not against the weight of evidence.”
    Qn EXCEPTIONS.
    'v/This was aii action of trespass for breaking and entering the plaintiff’s close at divers times between January 1,1866, and March 17, 1871, the date of the writ, and for cutting and carrying away wood and timber.
    The case shows that the plaintiff received his title to the real estate, upon which the trespasses are alleged to have been committed, from the defendant, his father, December 27, 1862, and that the conveyance was without consideration, the son being in California at the time it was made ; that the father afterward continued in occupation as before and paid the taxes thereon. On the 24th day of February, 1868, the plaintiff gave to the defendant a general power of attorney, of the revocation of which, by a power of attorney given to Hartson Harmon, plaintiff’s brother, the defendant had notice about the seventh day of February, 1870.
    The power of attorney to Hartson Harmon was revoked and a second power of attorney given to the defendant on the 16th of March, 1870, which was again revoked on the 17th of March, 1871, the day upon which the writ in this case was made. The plaintiff in his deposition, in answer to a question as to what induced him to revoke the power of attorney given to his brother Hartson, and to give a power of attorney to his father to take charge of, manage, and control the real estate, testified: “1 received letters from Harris Doe, William Haskell, and Elbridge Haskell, and also other parties, that my brother was going to swindle my father out of all his property; that he was destitute and that I had better put the real estate hereinbefore referred to, in my father.’s hands.”
    The plaintiff proposed interrogatories to several witnesses, called by him, in regard to the pecuniary circumstances of the defendant, as to whether he had stated to witness the amount of insurance money which he had in his pocket at the time of the conversation 5 whether defendant had called on the witness in regard to a town order for 8400; whether the defendant ever told the witness that he had a thousand dollars in his pocket in the spring of 1870, whether he ever told witness that he had money enough to carry him through and didn’t want any of his son’s help, and questions of similar import, all of which, being objected to, were excluded by the court.
    The presiding judge, among other things, instructed the jury as follows : “ With respect to the acts alleged to have been committed, whatever they were, from the 1st day of January, 1866, to the 24th of June, 1868, he (defendant) says he had a license, not a written license, authorizing him to cut off wood and use it» but there was an understanding between him and the defendant growing out of the relations of the parties; the acts of the parties which in law and in fact amount to a license; which affords him a complete protection, and answers for all the acts he did and committed upon the premises during that time. In order to show a license for doing those things, it is not necessary that there should be a written permission or authority or power of attorney. It may bo verbal. It is not necessary that the parties should get together and talk the matter over, the one giving the other permission and authority verbally and personally to do the acts. It may be inferred and proved from other circumstances, like any other fact.”
    The jury found for the defendant, and to the instructions and the refusal of the judge to admit the testimony above referred to, the plaintiff excepted.
    
      Baker Baker, for the plaintiff.
    
      B. F. Pillsbury and W. B. Whitehouse, for the defendant.
   AppletoN, C. J.

This is an action of trespass quare clausum fregit. The case comes before us on exceptions. The whole evidence, however, is reported and the counsel for the plaintiff has endeavored to satisfy us that the finding of the jury was against the weight of evidence on various issues raised during the progress of the trial. That may be so, but no motion for a new trial as against evidence has been filed. All, therefore, that remains for us is to examine the validity of the exceptions which have been taken to the rulings of the presiding justice.

It seems that the parties are father and son ; that the defendant conveyed the land upon which the trespass is alleged to have been committed to his son ; that the deed was without consideration and without the knowledge of the son at the time that it was given, and that after the deed was recorded the father remained in possession as before, paying the taxes thereon, etc.

The presiding justice after calling the attention of the jury to the relationship"of the parties and the circumstances of the case, instructed them that to show a license, it was not necessary that there should be a written permission or authority or power of attorney ; that it might be verbal or inferential from circumstances, and then left it for the jury “ to determine whether there was or was not a license for the defendant to do what he did.”

The rulings on these points were in accordance with law. A license may be created by parol. Ricker v. Kelley, 1 Greenl. 117; Batchelder v. Sanborn, 24 N. H. 479. So it may be inferred from the relations of the parties and the circumstances of the case. Lakin v. Ames, 10 Cush. 198.

No incorrect rule of law was given to tlie jury. If any further instructions were needed for the better elucidation of the case, the counsel for the plaintiff should have requested them. If there were any error of fact in the finding of the jury it is not before us for correction.

There were trespasses claimed to he committed between different periods of time, as they are specified in the charge of the judge. As to the fact of their commission, that was left to the judgment of the jury.

It seems that the plaintiff on or about the 24th of June, 1868, gave his father a power of attorney, which remained in force until Feb. Í), 1870, when it was revoked and one was given to his (plaintiffs) brother. While this power of attorney was in force, it is not claimed that the defendant is responsible in trespass for any acts done under it.

On the 16th day of March, 1870, or about that time, the power of attorney last mentioned was revoked and a new power given by the plaintiff to his father, which remained in force until its revocation in 1871. The plaintiff seeks to recover for trespasses claimed to have been committed during this last-mentioned period, on the ground that the defendant obtained the power of attorney by fraudulent misrepresentations.

The question of fraud in obtaining the last-mentioned power of attorney was submitted to the jury, and the fact was negatived by their verdict.

But the plaintiff claims that evidence tending to establish the fraud was improperly excluded. In his deposition, in answer to the inquiry why he revoked the power of attorney given his brother, Hartson Harmon, and gave a new power to his father to take charge of and manage and control his real estate, his answer is as follows: “ I received letters from Harris Doe, William Haskell, and Elbridge Haskell, and also other parties, that my brother was going to swindle my father out of all his property; that he was destitute and that I had better put the real estate hereinbefore referred to in my father’s hands.”

It is claimed that evidence to contradict the letters thus alleged to be the ground of the revocation of one power of attorney and the giving of another, should have been admitted. But the letters in question only state that “ Oliver and Hartson are trying to hurt your fatherthat “Harts, and the rest of the boys, Will and John, they are trying to get every cent he has got and turn him out for himself; and this land he gave you, they are bound to get it away from him and I think you ought to hang to your father.”

Now, these letters are mainly advisory. They do not say that the father was destitute, but that he might become so, nor that one of his sons (my brother) was going to swindle him out of his property, but the boys were trying to get his property.

Now, however these letters are to be regarded, the evidence offered and excluded can hardly be deemed as contradictory to the statements contained therein. Whether the defendant stated that he had the insurance money received for his mill that had been burnt, whether he had a town order for $400, whether he stated he had money enough to carry him through and did not want any of his son’s help, whether he ever said he had a thousand dollars in his pocket, whether in Feb., 1870, he was worth from $2,500 to $3,000, were questions, howsoever answered, which would not contradict the statements contained in the letters which, as the plaintiff says, induced his action in the premises. As for any and all other purposes, they were obviously immaterial and irrelevant.

So far as relates to the defendant’s letter to the plaintiff, he does not say that was what induced his changing his attorney, but confines himself to what was said by Doe, and the Haskells and other parties, which can hardly be deemed as including his father.

The power of attorney was revocable at the will of the plaintiff. It is not denied that if properly obtained it was a protection to the defendant during its continuance.

It may well be questioned, whether the statements contained in the letters upon which the plaintiff based his action, even if untrue, would avoid and render null a power of attorney under seal. If not, then it was voidable only and in full force until revoked. If so, while remaining in full force and not revoked, the defendant would not be a trespasser for acts done under its authority, and the instructions on this point were sufficiently favorable to the plaintiff.

Exceptions overruled.

Cutting, DicKERSon, and Peters, JJ., concurred.

DaNEORTh and YirgiN, JJ., concurred in the result.  