Hubbard v. Elmer
New York Supreme Court
This was an action of tresspass, quare clausum fregit, tried at the Allegany circuit in May, 1830, before the Hon. Addison Gardiner, one of the circuit judges. The plaintiff proved the cutting and carrying away of a quantity of pine saw logs by the defendant in 1826 from the locus in quo.
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This was an action of tresspass, quare clausum fregit, tried at the Allegany circuit in May, 1830, before the Hon. Addison Gardiner, one of the circuit judges. The plaintiff proved the cutting and carrying away of a quantity of pine saw logs by the defendant in 1826 from the locus in quo. The defendant proved that on the 5th May, 1825, one Foote, as the attorney of the plaintiff, entered into a contract with one Jackson, to sell and convey to Jackson 100 acres of land, part of the lot on which the timber was cut, for the consideration of |800, of which sum $80 was to be paid down, and the…
1Opinion of the Court
By the Court,
Nelson, J.
It has been repeatedly decided in this court, that a contract to sell and convey land upon certain conditions therein contained, does not of itself confer a *448license to enter, much less to enter and commit waste, by destroying the timber, 9 Johns. R. 35, 331; 7Cowen, 229; and if so, it obviously follows, that an agent or attorney, who only has power to “ bargain and sell,” (subject to confirmation,) has no authority to license any one to enter and commit waste, or cut timber. The defendant, therefore, cannot justify himself under the agent. . The agent in this case had…
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