
    Cowan vs. Adams & als.
    
    A. authorized B. his agent, to sell certain logs belonging to the .principal, and expressly instructed him, that in every event, the logs were to remain the property of the principal until paid for, or amply secured. B. sold, permitting the property to go into the possession of the purchaser, without being paid for, and for security, the purchaser agreeing that the principal should have a lien upon the logs until paid for. Held, that the sale was not obligatory upon the principal, it not having been made in conformity to the authority given; the supposed lien without possession, yielding but an imperfect security, and differing from that contemplated by the principal.
    The statute of frauds relating to contracts for the sale of goods, &c. of the price of $30 or more, cannot be set up in defence, except by him who is sought to he charged by such contract, or his legal representatives.
    This was an action of trespass for taking and carrying away a quantity of pine mill logs. It was proved that they were cut by the plaintiff in the winter of 1828-9, on a township of land then owned by John P. Boyd, which he purchased in July, 1828, of the State, in pursuance of information derived from the plaintiff, who had spent considerable time, and incurred some expense in exploring it.
    Immediately after General Boyd bought the township, he requested Edmund T. Bridge, Esq. to take the general superintendance of it, and instructed him to give the plaintiff the preference as a purchaser of the timber, if he would give as much as any other person. He further directed him, to receive proposals for the sale of the timber, and to report them to him. The plaintiff offered one dollar per thousand, which Boyd dedined, saying it was worth $1,50. Bridge, however, testified that, the best offer he received from any other person was 75 cents per thousand.
    
      Aug. 22, 1828, Boyd, in a letter to Bridge, said, “ After re- “ ferring to your several advices, am fully decided that the “ sooner arrangements are concerted for the sale of stumpage “ the better; the mode, security, &c. has been submitted for “ your judgment. I should hope to obtain more than one dol- “ lar, but you will do the best for my interest.” “ Contracts “ should be so made that the logs are to be my property until “ paid for.”
    
    Late in the fall of 1828, Bridge informed Boyd, that the plaintiff was cutting timber on his township, and Boyd thereupon wrote to him, to seize the logs — but Bridge replied, that he did not think it for Boyd’s interest to seize the logs then, but to avoid giving the plaintiff any license or permission and thereby hold him and his logs in his power, and that he might settle with him in the spring, having the logs scaled, and taking pay for the standing timber. To this Boyd assented, or referred the matter to the discretion of Bridge.
    
    In another letter from Boyd to Bridge, dated Bee. 23,1828, he said, “ Refer to my advice of Aug. 22, — the logs always to “ remain my property until ample security or payment is made.”
    
    In April, 1829, Bridge and the plaintiff,
    agreed upon one Joseph Norris to scale the logs, who did so, and made his report to Bridge, and he to Boyd. For the timber thus cut and scaled, Bridge settled with the plaintiff at one dollar a thousand, deducting 15 per cent, from the aggregate scale. It was agreed that Boyd was to have a lien upon the timber until paid for, according to the plaintiff’s contract. Boyd, after some objection, finally paid Norris for one half his services, as had been agreed between Bridge and the plaintiff. The latter was to take charge of the logs and run them to market, subject to Boyd’s lien. The sum to be paid by the plaintiff was $850, 67, which was predicated on Norris’s survey. None of the logs were run down in 1829. In 1830 the plaintiff run down a raft, out of the proceeds of which, he paid to Bridge $600 on account of his contract, that sum being in the opinion of Bridge, the amount of the stumpage on the timber thus got down that season. Of this amount, $500 was remitted to Boyd, and for the balance Bridge gave him credit in account.
    It appeared that no other adjustment was made, or payment received from the plaintiff, until the death of Boyd, which happened in November, 1830.
    
      Bridge stated, that it was his intention and expectation that Boyd’s lien should be preserved until he was fully paid.
    On the part of the defendants, was introduced the deed of Boyd to Tarbell, one of the defendants, dated Aug. 23, 1830, of the township on which said logs were cut,. and Tarbell’s deeds of one third to each of the other defendants. — Also the deposition of Samuel Adams, who testified that he, as the agent of Gen. Boyd, effected the sale of the township to Tarbell. In one conversation he had with Boyd upon the subject, he asked him what he intended to convey. Boyd replied, that he meant to convey with the township, all the logs and timber standing or cut, and after the deed was given, he offered to give a separate instrument to that effect, but it was not done.
    It was proved that the logs in controversy, at, and after the giving of this deed, were lying within the limits of the township where they had been cut, and where they were taken by the defendants’ agent and run down to a market by the express direction of the defendants after they had taken possession of said township, which is the trespass complained of.
    It was contended by the defendants’ counsel, that the plaintiff never had any property in the logs sued for — that Bridge had no authority to transfer them to him —• and if he had, it was only upon and after actual payment of the stumpage, which had not been entirely paid — and that Bridge never did undertake or agree to transfer the logs to the plaintiff.
    But the presiding Judge instructed the jury that the authority given by Boyd to Bridge was sufficient to enable him to transfer the interest of Boyd in the logs, and that the letters that passed between him and Bridge, the contract of the plaintiff, and the testimony of Bridge, were sufficient evidence that the authority was fairly exercised, and the property in the logs transferred to the plaintiff subject to the lien of Boyd. — The defendant’s counsel further contended, that by the deed to Turbe,ll, and the agreement proved by the deposition of Samuel Adams, these logs were conveyed to the defendants. But the jury were instructed, that neither that deed, nor the agreement, could operate to convey logs to the defendants, which Boyd had either by himself or agent, previously sold to the plaintiff. — It was further contended for the defendants, that the logs being upon their land, and thus in their possession, they could not, under the circumstances, be trespassers for taking and removing them. But the Court instructed the jury, that although the logs were on the land, they were not the property of the defendants, that what they did by their agent, Gibson, was a violation of the rights of the plaintiff that made them trespassers, and that they might be charged in this form of action.
    If the ruling and instructions above, were not correct in the opinion of the whole Court, the verdict, which was returned for the plaintiff, was to be set aside and a new trial granted, otherwise, judgment was to be rendered thereon.
    
      Allen and Sprague, for the defendants.
    1. The logs in question lying upon the land at the time of the conveyance, passed by Boyd’s deed to Tarbett. Farrar v. Stackpole, 6 Greenl. 154; Lassell v. Heed, 6 Greenl. 222; 4 Bane’s Abr. art. 9. If not, the circumstances testified to by Samuel Adams, are tantamount to a bargain and sale.
    2. Bridge never sold to the plaintiff, — at most, it was a mere contract to sell.
    
    3. But if he did sell, Boyd retained a lien upon them, or else the sale was void, Bridge in that event, having exceeded his authority. He had no authority to sell without receiving payment or security. lie had no authority to sell without retaining a lien on the logs until payment.
    4. But the defendants are not liable in trespass, however they may be in trover, or assumpsit. The land was theirs — the logs were on it — and they might lawfully take and remove them from the land.
    
      Boutellc and Potter, for the plaintiff,
    argued against the admissibility of Adams’ deposition on the ground, that a grantor cannot by his declarations, made subsequent to the grant, impair or affect it. Bartlett v. Belplat, 4 Mass. 702; Ciarle v. Wait, 12 Mass. 439.
    But if admissible, and it prove a sale, then contend that the sale would be within the statute of frauds, and so nothing passed to the defendants.
    
      Bridge was fully authorized to sell, and did sell to the plaintiff. Boyd, in his letter of Aug. 22d, 1828, directs Bridge to do the best he could, thereby investing him with a general authority.
    But if Bridge had no precedent authority to make the sale in the manner he did, yet if Boyd knew it, as it seems he did, and made no objection, as it seems he did not, it may be construed as a confirmation of the sale. Frothingham if al. v. Haley, 3 Mass. 70.
    In this case, however, there was' not merely a silent acquiescence in the doings of Bridge, but an express ratification, by the appointment of Norris to scale the timber, and afterward receiving the pay for it in part.
    That the plaintiff has a good cause of action, and that trespass is the proper remedy, they cited further, 5 Bane’s Abr. 559; 9 Pick. 552; Cowing v. Snow, 11 Mass. 415; Petersdorff’s Abr. 15, 123; 3 Stark. Eo. 1490; 2 Saund. R. 47, note c.; 1 Chitty on Plead. 48.
   The opinion of the Courts, at a subsequent term, was delivered by

Mellen C. J.

The plaintiff claims a right to maintain this action against the defendants, and recover damages for the .alleged trespass by them committed, in virtue of a contract made with Bridge as the agent of Boyd, in April, 1829. It appears that the logs, respecting which the contract was formed, had been before that time cut by the plaintiff, without permission, on Boyd’s land, and were then lying there. It is important to ascertain the nature and extent of the instructions and authority given by Boyd, to Bridge, in relation to the logs in question; and in the next place, the nature and consequences of the contract as made, if made in conformity to the instructions and power given by Boyd to his agent. The evidence as to the nature and extent of Bridge’s authority is principally derived from Boyd’s letters to him; for Bridge, in his testimony, speaks of no other or verbal instructions, though he describes them in the manner in which he seems to have understood them in making the contract with Cowan. In Boyd’s letter of August 22d, 1828, which has almost exclusive reference to the logs in question, he says, as to the disposition of them, “ contracts “ should be so made that the logs are to be my property until 44paid for.” In another letter of December 23d, 1828, he says, “ Refer to my advice of August 22d, the logs always to remain “ my property until ample security or payment is made.” Again, in his letter of April 27th, 1829, about the time the contract was made, he says, “I have your favour of the 24th. The care “ of my property in Tom Hegan, was committed to your legal knowledge, with my several advices. 1. To request your fath- “ er’s advice respecting the trespass of Cowan.— Next, that payment for all logs cut should be made in June ; and, to 44 hold, the logs until absolutely paid for.” In no one of his letters is any authority given, to make any disposition of the logs, by which the property of them should pass to Cowan, until they should be fully paid fot. It is contended by the counsel for the defendants, that the contract made by Bridge was not justified by his instructions ; and that, as they claim under Boyd, they are interested in this question, and, of course, are entitled to contest the validity of the contract, as made by Bridge and Cowan. And they further contend that the contract, as made, amounts to a transfer of the property of the logs to Cowan, and that a lien only is reserved to Boyd, upon the logs, as security for payment; and that such a lien, unaccompanied with a possession of the logs, was of no use to Boyd or of any legal effect, whatever the parties might then have supposed. It here becomes necessary for us carefully to examine the alleged distinction, and the rights which Cowan would have had, in respect to the logs in question, had the contract been made in the spirit and terms of the instruction ; and also what are his rights, according to the terms of the contract as stated by Bridge, in his testimony. His own words are, “ It was agreed that Boyd was “ to have a lien upon the timber, until paid according to the “plaintiff’s contract.” — He adds, that Cowan “was to take “ charge of the logs and run them to market, subject to Boyd’s lien.” If there is a material distinction between the contract as made, and as it was the duty of Bridge to make it, in pursuance of his instructions, in regard of the legal rights of Cowan under the -contract, then Boyd was not bound by it, and Cowan acquired no rights under it, unless Boyd afterwards ratified and sanctioned the contract, as made; of which fact there is no evidence before us. This is a principle of law perfectly familiar. Faley on agency, 150, 151. The parties to a contract are always supposed to have some object in, or some expected advantage from, the insertion of the stipulations and provisions it contains. In giving his instructions to Bridge, Boyd must have considered the logs as unsafe, under the absolute control of Cowan, as his letters distinctly show, and as liable to be seised by Cowan’s creditors; the object of both parties must have been to secure his interests against that peril, in a manner deemed legal and sufficient. In the action of Waterston & al. v. Getchell, 5 Greenl. 435, the nature of such a contract as was intended by Boyd has been the subject of examination and decision by this Court. The facts were these : The plaintiffs entered into a contract with Robinson, by which they granted him permission to enter upon their tract of land and cut and carry away therefrom, pine timber, which was to be floated down to certain specified places. The contract contained a clause, “ that “ the ownership of all the timber so cut, how or wherever sit- “ uated, should be and continue in the hands of Waterston &f al. “ until all sums due them, &c. shall be paid and discharged, and “all the conditions of this agreement fulfilled.” —Robinson sold the timber to the defendant, who knew of the reservation, and the plaintiffs recovered against him. Suppose the contract had been made as Boyd directed — the property to remain in him till payment, (which has never been made:) how could Cowan be viewed, in a legal sense, any thing more than the agent or servant of Boyd in running the logs to market. In such case the possession of Cowan would have been the possession of Boyd, for the purposes of protecting his own rights, reserved to him by the contract. On what principle, then, can the plaintiff maintain the present action and recover damages, equal to the value of the timber ? If he can so recover, of what use is the cautionary proviso in the contract, as to Boyd’s ownership of the logs till paid for ? The whole benefit of it is lost at once, and it is taken from him in direct violation of the property of the owner, Boyd, and contrary to the express agreement of the parties, made for the sole purpose of protecting it from violation. The design was to leave the property in Boyd, to prevent Cowan from disposing of it as Ms own property, or its being attached or seised on execution by his creditors, and in either case, that he might have it in his power, by asserting his rights, to reclaim the property for his own use. His object was to have the legal control of it and of its avails. The contract authorized to he made, was a legal one.

But in the manner the contract was made by Bridge, if Boyd was bound by it, then the property of the logs was transferred to Cowan, subject, it is said, to the lien of Boyd for the amount due. But on this principle there was no lien; for the logs were in the possession of Cowan. “ No lien can be acquired, unless “ the property on which it is claimed, come into the possession “of the party claiming it.” Kinlock v. Craig, 3 T. R. 119; Whitaker on Lien, 65 ; Portland Bank v. Stubbs & al. 6 Mass. 462. Nor continue any longer than his possession of such property continues. Jones v. Pearl, 1 Stra. 556 ; Doug. 97 ; 1 East, 4; 7 East, 5. The consequence of which must be, that the absolute property vested in Cowan, contrary, not only to the repeated directions of Boyd, but the idea and intention of Bridge. However, upon a full view of the facts of the cause, touching this branch of it, and the principles of law applied to them, we are satisfied that the contract made by Bridge and Cowan was not authorized by Boyd’s instructions and think the presiding Judge’s opinion erroneous on this point; and that the contract, therefore, must be deemed a nullity, unless it has been since ratified by Boyd, as we have before observed, of which we have no evidence.

The only remaining question is, whether the plaintiff can maintain the action against the defendants on his alleged pos session of the logs, without other title. If they are to be considered as strangers,' and without any privity with Boyd, we think the authorities cited and many others clearly show that the plaintiff is entitled to recover; but is there not a privity existing between Boyd, or his heirs, and the defendants ? On the 23d of August, 1830, Boyd made a deed of the township to Tarhell, one of the defendants; and he conveyed one third part of it to each of the others; and Samuel Adams testifies that in a conversation with Boyd, which was before the deed was given, he told him, after some conversation respecting logs and timber, that he meant to convey all the logs’ and timber, standing or cut, and offered to give a separate instrument for it. He had a right to do this, inasmuch as the contract, made with Cowan was not binding upon Boyd. On this principle, as the defendants claim the logs under Boyd, they are not strangers; and, of course, may defend themselves,- if the sale of the property by Boyd to them was complete and effectual. No writing was necessary to make the sale valid. At the time, the property was lying on his land, and, in his possession : he then had a legal right to dispose of it. But it has been contended that the sale of the timber was void by the statute of frauds, sec. 3d, the property being sold for a price exceeding thirty dollars. To say the least of it, it seems to be a singular objection for Cowan to make. He was no party to the contract, nor representative of a party. The 3d sec. of ch. 53, of the revised statutes declares, that no contract for the sale of goods, &c. for the price of thirty dollars or more shall be allowed to be good, except the purchaser shall accept part of the goods and actually receive them, or give something in earnest, or in part payment, or some note in writing, of the bargain made and signed by the parties^ to be charged by such contract. Here, it is evident, that a party attempted to be charged by the contract, is the person objecting to the charge made; and in all the cases where the question has arisen, a party to the contract or his legal representative made the objection, when called on to perform his contract. Surely no person can plead infancy or the statute of limitations but a party to the contract thus attempted to be avoided, or his legal representative. Neither Boyd nor his representatives are dissatisfied with the sale he has made. But, independent of the above observations, by attending to the facts in the case, we perceive that the objection is not supported by facts. When the conveyance of the township was made by Gen. Boyd in August, 1830, the timber on the land, as well as the land, passed into the possession of Tarbell, who made the purchase for all the defendants. In this manner the sale was perfected and complete. 2 Starkie, 609; Searl v. Keeves, 2 Esp. Ca. 598. The next spring, the defendants, by their agent, took the property and removed it, and appropriated it to their use.

On the whole, we are of opinion, that the action is not maintainable upon the evidence before us, and accordingly the verdict is set aside and a new trial granted.  