Bennett v. Scutt

By the Court, T. R. Strong, J. The wood, for the burning of which this action was brought, was cut by the plaintiff in March or April, 1852, on the land of the defendant where it was burned, under a verbal agreement between the parties, whereby the plaintiff was to cut the wood and brush, and heap the brush, for the wood. There was some testimony tending to prove that the defendant gave verbal permission to the plaintiff that the wood might be drawn away the next winter by sleighing; and this may be treated as part of the agreement. This agreement was within the statute of frauds and void, as an agreement, but it operated as a license to the plaintiff to cut the wood, and probably was sufficient to vest a title in the plaintiff to all wood cut under it; no point having been made that the terms of the agreement were not complied with by him. (Pierrepont v. Bar [349] nard, 2 Selden, 279. Green v. Armstrong, 1 Denio, 550. Bank of Lansingburgh v. Crary, 1 Barb. 542. Warren v. Leland, 2 Id. 613.) But this license was revocable at any time, as to the future. (Miller v. The Auburn and Syracuse R. R. Co., 6. Hill, 61.) And evidence was given tending to show that, about a week before the burning of the wood, the defendant gave notice to the plaintiff that he was about to burn his fallow where the wood was, evidently with a view to have the plaintiff remove the wood. If such a notice was given, it was a revocation of the license in respect to allowing the wood to remain on the premises, and all right in the plaintiff to occupy the land thereafter with the wood, beyond a reasonable time for its removal, was thereby terminated. But although the license was revoked, and a reasonable time afterwards to get away the wood had expired, the defendant had no right to burn the wood. These facts, however, are entitled to an important bearing on the question of negligence. The wood was consumed by fire communicated to it while the defendant was burning his fallow, in August, 1852. The defendant, in burning his fallow', was engaged in a lawful act; the wood of the plaintiff was wrongfully there; and it was at least requisite that willful wrong or gross negligence in him should be proved, to render him liable. The plaintiff was engaged at the time in getting away his wood, and the defendant assisted him to some extent. It appears that there was a road between the wood and the fallow, part of the way; and that the plaintiff told the defendant, “if that road went all the way through, it might not burn the wood, if it was not for a certain pine stub.” The evidence is not clear in regard to where the wood burned was, in reference to the place where the defendant was burning his fallow; and the case is silent as to any evidence in regard to the weather, the state of the wind, and the efforts of the plaintiff and defendant to prevent the fire consuming the wood. After a careful examination of the case, I am satisfied that the evidence fails to show a willful wrong on the part, of the defendant; and I think there was a fair question for the jury, on the evidence, whether the defendant was guilty of gross negligence. If there was such a question, the decision of the jury [350] upon it was conclusive. Although against the weight of evidence, the county court could not properly disturb the decision. It is only when the facts of a case are undisputed, or the evidence is not conflicting, and is free from reasonable doubt, that the verdict of a jury in a justice’s court can be set aside as contrary to or against evidence. (Noyes v. Hewitt, 18 Wend. 141. Baum v. Tarpenny, 3 Hill, 75. Adsit v. Wilson, 8 How. Pr. Rep. 64. Kasson v. Miller, 7 Id. 377.) [Monroe General Term, September 4, 1854. The judgment of the county court must be reversed, and that of the justice affirmed. Johnson, Welles and T. R. Strong, Justices.]