Merrick v. Plumley

Gray, J. The court is of opinion that the plaintiff shows no just ground of exception to any of the rulings or instructions of the judge before whom the trial was had. The defendants, being sued in tort for entering upon the plaintiff’s land and quarrying and removing stone therefrom, set up in their justification license from the plaintiff herself and from her husband as her agent. They offered in evidence an agreement under seal, containing a license to them, but executed by the husband in his own name, and which was excluded on the plaintiff’s motion as not binding upon her. The defendants were then permitted, against the plaintiff’s objection, to prove the oral agreement made between them and the husband. We are not prepared to say that an instrument under seal, executed by an agent in such a manner as to bind him personally and not his principal, and ruled out of the case upon the principal’s objection, prevents the other party from proving an earlier oral agreement upon the same subject, made by the agent within the scope of his authority, though different from the written contract. But it is unnecessary to express a positive judgment upon that question ; inasmuch as we are of opinion that in this case the terms of the oral contract of which evidence was permitted to be given did not differ in legal effect from those of the writing. The testimony introduced by the defendants was, that, by their oral agreement with the plaintiff’s husband, they were allowed to quarry the stone, “ wherever they pleased,” on the whole lot of the plaintiff, and were to pay for such license the sum of one hundred and twenty-five dollars. By the writing, it was stipulated that, if the defendants should “ find it necessary to take any stone which the said Merrick ” (the husband) “ has designated as specially reserved,” they should pay the sum of twenty-five dollars, in addition to the sum of one hundred dollars previously agreed to be paid in any event. The defendants were thus made the only judges of the necessity of taking any of the stone designated as specially reserved, and had by the terms of the written, as by those of the oral license, the rigb at their own election to take stone from any part of the lot, in consider [573] ation of the gross sum of one hundred and twenty-five dollars. The memorandum added below the signatures to the writing clearly referred to the style of the wall of the barn previously built, only for the purpose of explaining the meaning of the word “ rubble,” and not of limiting the place from which the stone might be taken. • Even if, therefore, the oral evidence was wrongly admitted, yet, as it did not vary the legal.effect of the writing, the plaintiff was not injured by its admission. Crittenden v. Field, 8 Gray, 621. Smith v. Faulkner, 12 Gray, 251. The defendants introduced evidence that the farm on which the quarries were had been conveyed by the plaintiff’s husband to her brother and by the latter to her, that she and her husband together had since occupied the premises, and that he managed the farm, sold the hay, butter and eggs, and let a tenement thereon; and the plaintiff herself testified that “ she had left the matter of the quarries mostly to her husband.” This evidence warranted the jury in finding that it was within the scope of his agency, as understood between him and his wife, to dispose of the stone and of the privilege to quarry and remove it; and was submitted to the jury with suitable instructions. The conjugal relation of the parties was only treated as one element, to be considered in connection with the other facts proved. Evidence that the plaintiff saw the stone (which was quarried within fifty rods of the dwelling-house) carried by her door from time to time during a year, knowing that the defendants supposed they had a license to do so, was competent evidence of a license from her; and was submitted to the jury under instructions sufficiently favorable to the plaintiff. Exceptions overruled.