Simpson v. Bowden

Tenney, X, orally. — There in no evidence of any express contract between the parties for the purchase of the timber, and the case shows a wrongful taking of it. The plaintiffs contend, that they may waive the tort and maintain their action, as on an implied contract. It may be a nice question to determine precisely where the line is to be drawn, between cases in which a party may waive a tort and bring an action of assumpsit, and where he is not permitted to do this. The Court do not deem it necessary for the decision of this case, to consider that question. The law will not imply a contract, where an express con [552] tract is proved. Nor will the law imply a contract in a case where the parties cannot legally make an express contract. The plaintiffs had no present interest in the land where the defendant cut and converted the timber. They could not legally contract for the severance and sale of the timber there standing. The parties being legally incapable of entering into an express contract of that character, the law cannot imply one. Nonsuit confirmed.