
    Washington Long & al. versus Daniel Hopkins.
    The plaintiffs represented to tke defendant that they had “ a permit” from the Agent of the State, to cut the birch timber on a certain township by paying “stumpage,” and the defendant gave them his note for a specified sum, “for their right.” The Land Agent seized the timber when cut, and the defendant was obliged to settle therefor as a trespasser. In an action on the note, it was held, that, as the State Agent had no authority to give the plaintiffs a license to cut the timber, there was no legal consideration for the defendant’s promise.
    Reported from Nisi Prius, Cutting, J., presiding.
    Assumpsit upon a contract of the following tenor and date: — "October 30, 1856. I agree to pay Long & Drew for their right to cut birch timber the present lumbering season in letter E, range 1, eighty dollars to be paid the first day of June next." (Signed,) "Daniel Hopldns.”
    The defendant was called as a witness and testified, — that prior to the date of the agreement the plaintiffs informed him they owned the birch timber — that there would be some more stumpage to be paid to the State, than the charge they were making to him. They at first asked $100, which he refused to give, and they finally agreed upon $80 as the price. Went on to the township and commenced to operate; was notified by the agent of the State, that he was a trespasser. He seized the timber; informed witness that plaintiffs had no permit. I afterwards settled with the agent for the stumpage. "When I gave the note I supposed it was for the right to cut the timber, and that they had a right.”
    On cross-examination witness testified, — "Long & Drew at first declined to sell mo the timber, for, as they said, they were going to operate themselves. They said, over and above what they asked, would be a mere trifle to pay the State. I supposed I should have to pay the State something.”
    At the time of giving the note, the plaintiffs gave the defendant a writing in these words, — "We agree to let Daniel Hopkins have all the right we have on letter F, range 1, to cut all the birch timber the present lumbering season, by his paying to us eighty dollars.” (Signed,) "Long & Drew.”
    
      Jesse Drew (plaintiff)
    testified that "in 1856 I applied to Walker, the Land Agent, for permission to cut the birch and hackmatack. ■ He told me he could not give me a permit, as the Legislature had repealed the law; that if we operated should have to pay only a fair price for stumpage; that he would allow no one to disturb us. I told Long I had a permit from Land Agent, I told defendant it was not a written permit as the Agent could not give any; that if we sold him our right for the birch, we should put no one else there; that if there should be a new Land Agent we would write to him who was there and how he was there. And we did so. Saw defendant after the note became due; he said he had not then sold the timber, — would pay the note when he sold it.”
    The plaintiff Long testified that, the defendant asked me " if we had a permit — I told him we had a verbal permit for birch — that the Land Agent could not give a written onetliat I had as lief have a verbal permit as a written one. He offered $80 for our right. He said he could not give our price ($100) and pay the State what he would have to pay.”
    If, in the opinion of the Court, the evidence shows a sufficient consideration for the note, the action is to stand for trial — otherwise, the plaintiffs are to become nonsuit.
    
      Granger & Madigan, for the plaintiffs,
    argued that the evidence disclosed several distinct and sufficient grounds of consideration to support the express promise of the defendant the written agreement given by the plaintiffs to the defendant; their promise not to cut the birch timber themselves, nor to authorize others to interfere with the defendant; their promise to aid the defendant in adjusting the claims of the State, — which they performed, — the defendant obtaining all he expected to get from the contract with the plaintiffs, and his subsequent promise to pay the note, after the settlement of the claims of the State.
    . The defendant was not deceived. The case discloses that he was fully informed of the claim of the State.
    It may be likened to a case where a man promises to pay a sum of money for a quitclaim deed, when it is well known to both parties that the grantor has no title, but the grantee is willing to pay something for the chance of deriving some advantage from the conveyance. Bean v. Flint, 30 Maine, 224; Sawyer v. Vaughan, 25 Maine, 337; Clark v. Peabody, 22 Maine, 500; 2 Parsons on Contracts, 369.
    
      Blake & Garnsey, for the defendant.
   The opinion of the Court was drawn up by

Kent, J.

The note or memorandum, on which this action is based, expresses distinctly the consideration for the promise to pay. It is the right of the payee " to cut birch timber, the present lumbering season, on Letter E, R. 1.” This is the only consideration set forth. The defendant insists that the plaintiffs never had any such right and, that he acquired nothing by the contract, and therefore his promise was without legal consideration.

It is evident, from the testimony of the plaintiff Drew, that the payees had no legal right, as against the State, to cut birch timber on the township in question. The conversation with the Land Agent negatives such an idea. The Land Agent, as he says, informed him that ho could not give him a permit — that the Legislature had repealed the law. The subsequent declarations gave no right, they, at most, amounted only to intimations that, if the plaintiffs did cut, a fair stumpage only would be exacted, and that no other person would be allowed to disturb them. The Land Agent had no legal light to give such assurances, and they could not create any right which could be asserted by the plaintiffs, much less, be sold and assigned by them.

The plaintiffs both admit that they told the defendant that they had " a permit” to cut this birch timber. They say they told him that it was not a written permit but a verbal one; but Mr. Long says he told the defendant, that he "had as lief have it as a written one.”

After a full and fair examination of the whole testimony, we are satisfied that the plaintiffs undertook to sell and assign to the defendant a legal right which would protect him in cutting. It is undoubtedly true, that both parties understood that stumpage was to be paid to the State, and that the right to be transferred was only a right to enter and cut unmolested; subject to payment of stumpage to the State— not fixed at the time. But what the defendant understood he wTas purchasing, was a right, which would protect him from being regarded and treated as a trespasser by the State. It was in the nature of a bonus for a permit by the State, to cut the birch timber. This right was not acquired; the timber was seized by the officers of the State, and the defendant was treated as a trespasser, and the assumed right was denied and disregarded, and the defendant was obliged to pay whatever was demanded or lose his timber. He was thus placed in a very different position from the one he would have been in, if the plaintiffs had had the right, which they assumed to convey, to cut the birch timber. There was no legal consideration for the promise.

The other considerations suggested are not sufficient in law and are none of them stated in the contract. The only consideration alluded to is the right to cut.

Plaintiffs nonsuit.

Tenney, C. J., Rice, Appleton, Cutting and May, JJ., concurred.  