Cooper v. Stower

A contract to sell and convey land, upon the performanee of to be performed by the purchaser at redoes not tarn a license to enter destroying the timber; nor does an agreement several ur" until all ef ecuted^the*” p“ehMe, and erby bond formanee ^of number on^the^ioT” imly a ££¡¿§(2 ^ fcflO purchasers, afmet and bond fe yaste? by cutrying "away The ™obstthai 0jn,be contract and a°penui"siou gur^to'enter" mean nani’ at, win, the lamMu’® ^““““bie manner as tenants at will might lawfuljy go

THIS was an action of trespass, for cutting and carrying away umber from the piaintiff’s land. The plaintiff’s declaration contained four counts. The defendant pleaded, 1. Not guilty; % Liberum tenement-urn, with a notice of special matter to be given in «,, . ,, , . , evidence at the trial. The cause was tried before Mr. Justice Yates, at the last circuit in Clinton county. , 0 The plaintiff proved that the defendant, m the years 1810 and 1811, cut from the lot of land in question, 500 spars, worth 2 do!lars each, and 30,000 feet of square timber, worth from 20 to 25 dollars per thousand, being the estimated value of the timber while 1 Standing. . The title of the plaintiff to lot No. 7. which included the land on which the timber was cut, was admitted. The witnesses stated that the land was of little or no value, without the timber. The defendants gave in evidence, a written agreement between the plaintiff and defendants, Thomas Slower, Jonathan Lynde, and A* Bonney, dated in December, 1809, by which the plaintiff covenanted and agreed to sell to the said defendants lot No. 7. in the town of Pern, in the county of Clinton, for the sum of 1,2?5 dollars, payable in four equal payments, the first to be made on the 1st March, 1810, the second on the 1st October, 1810, the third * ' on the 1st October, 1811, and the fourth on the 1st October, 1812, the three last payments bearing interest; that if the defendants should pay the plaintiff 1,275 dollars, in the manner mentioned, with interest, and also all taxes, charges and assessments on the land, then,'and in that case, the plaintiff covenanted and agreed to convey to the defendants the said lot. The defendants also gave in evidence, an agreement executed by blower alone, dated in December, 1809, by which he achnowledged to have received from the plaintiff a contract exeeuted by the plaintiff, and the counterpart thereof, (stating the substance of the contract,) and also a bond, conditioned for the payment of the said sums, to be executed by himself and the said Lynde and Bonney to the plaintiff; the counterpart of the contract and the bond, as soon as they should be executed by the said, Lynde, Bonney, and himself, the defendant, Slower, promised tó return to the plaintiff; and that the same should be executed as goon as 3efendant returned to Essex county. The defendant further promised and agreed, that until the said contracts and said bond were executed by himself and Lynde and Bonney, no timber should be cut on the said lot, by or under the authority or direction of them. The contract and bond were executed by the defendants, Lynde and Bonney, according to the agreement of Stower, and Were returned to the plaintiff by the next mail. It did not appear that any part of the purchase-money had ever been paid. , The defendants rested their defence, on the ground that a license to enter was to be inferred from the contract. A verdict was taken for the plaintiff for 1,600 dollars, by consent, subject to the opinion of the court on a case containing the facts above stated. The case was submitted to the court without argument