Allen v. Woodward

The second count is bad. The consideration as stated is past. Lawes PI. 62, 63; 1 Saund. Rep. 264, n. 1; Comstock v. Smith, 7 Johns. 88. The act of taking the logs as alleged seems to have been a trespass. If it had been alleged that the trees were cut and carried away by the assent and pérmission of the plaintiff, the count would be sufficient, and proof *547of the settlement would be admissible as evidence of such assent, if the plaintiff appeared to be a tenant in common of the land; because a ratification or subsequent approval is equivalent to a previous assent. Ratihabitio retrotrahitur atque mandato equipar atur. 18 Viner’s Ab. 156.

The first count is substantially for goods sold and delivered. The evidence does not prove a sale. It merely proves a promise to pay damages for a trespass. If the plaintiff was the party entitled to receive the damages, and they had been paid, they would have compensated for the whole trespass, the breaking and entering, cutting the trees, and converting, the logs; and the property of the logs would thereby pass to the defendant; but not upon any idea of sale. Here there was neither a payment nor any agreement to sell. The defendant promised to settle the trespass, and to pay the worth of the trees, but he did not do it. It was, at most, a talk preliminary to an adjustment, ending in nothing. The parties, in truth, never came to any agreement. One says, I will pay for the logs what they were worth on the stump. The agent of the owner said, he was directed to settle at what they were worth. Neither the agent nor the owner had fixed a price; he would fix a price next week. There the negotiation ended, the whole matter of the amount to be paid being left undetermined. They had not agreed. There was as yet no contract. Perhaps the offer to pay what the logs were worth, if it had been accepted, might have been a sufficient contract of settlement, but it was not accepted. The matter was postponed to a future meeting. The defendant exacted a promise not to make him cost till he could pay ; and the parties did meet, but nothing further was done. The business was not completed.

Put there is another objection of a more important character, which is, that the property of the l.and, and consequently of the timber, was not in the plaintiff, but in the proprietary. In Atkinson v. Bemis, 11 N. H. Rep. 44, it was held, that the title of a proprietor is merely of a share of the proprietary property, and the title to such share or right can be enforced only through the proprietary in their corporate name, until a partition of the land *548has been made. And tbe same rule necessarily follows, as to actions brought for trespasses to the property. The plaintiff having no right of action in himself, had no power to compromise the claim for the trespass, or to release it; and any adjustment by him, if such were actually made and completed, would not discharge the action of the proprietary, nor in any way affect it; and, of course, upon the evidence, could not furnish any consideration for the promise declared on.

There must therefore be

Judgment for the defendant.