author: Gardiner, Ch. J. Parker, J.

text:
    Hathaway against Bennett.
    The route of a newspaper carrier may he the subject of sale, like the good will of a trading establishment or the ride of a physician.
    But the sale of such route by one carrier to another gives the purchaser no right to maintain an action against the proprietor for refusing to furnish him with the papers for the purchased route, although the proprietor had recognized him as the carrier for such route, had substituted his name on the books in place of the former carrier, and had furnished him for a time with the papers for that purpose.
    Such circumstances constituted no such relation of master and servant between the proprietor and the new carrier as required a month’s notice to determine it.
    The defendant was the proprietor and publisher of The New-York Herald; and it was the practice of that establishment, as well as of some other newspapers in New-York, to engage certain carriers for the different wards of the city, and to deliver to them, each day, at a stipulated price per copy, the papers to be delivered in their respective wards; the carriers receiving their remuneration from the advanced price at which they retailed the papers. These routes, or exclusive privileges of supplying the different wards, were the subject of purchase and sale among the carriers, and the defendant, in some instances, had known of and consented to such sales. «
    In the spring of 1846, one Winyates, who was the regular carrier of The 'Herald for the fifteenth ward, sold his route to the plaintiff for $575. The name of the plaintiff was thereupon substituted by the defendant’s clerk for that of the former carrier, upon the book kept at the Herald office in which the names of the earners and their districts respectively were kept; and the plaintiff thenceforth received and paid cash for the papers for the fifteenth ward until May, 1848, when the proprietor refused any longer to supply him, and selected another carrier for that route. No communication whatever upon this subject was had between Hathaway and Bennett. The plaintiff thereupon brought this action in the superior court, upon the agreement which he alleged was implied between the defendant and himself that he should have the exclusive privilege of supplying the fifteenth wrard with The Herald., and should be furnished with papers for that purpose, at a specified price, so long as he should continue faithfully to carry and deliver the same.
    Upon the trial, before Chief Justice Oaklet and a jury, in March, 1850, upon proof of the above facts, the complaint was dismissed, upon the ground that the evidence was insufficient to authorize a verdict in favor of the plaintiff. This ruling was affirmed at general term, and the plaintiff appealed.
    The cause was argued here by

      David Dudley Field for the appellant, and

      Edward Sandford for the respondent.
   Gardiner, Ch. J.

The only question is whether the evidence in connection with the pleadings established a case proper for the consideration of a jury. The contract stated in the complaint is somewhat peculiar in its character. It binds the defendant for an indefinite period to supply the plaintiff exclusively with newspapers for a particular district, for a stipulated sum, and of course to withhold them from all others during the existence of the agreement; while the carrier was at liberty to abandon the contract at pleasure, without subjecting himself to any liability to the editor for his non-performance. The defendant was obliged to keep up his establishment and continue the paper, although his own interest and that of the public might require its discontinuance ; while the plaintiff could treat the privilege of distributing the newspaper, as property, and dispose of it at will, and transfer all his rights to an assignee, without the assent and against the will of the proprietor. It must be concluded that there was no mutuality in such an arrangement. No express contract to that effect is pretended, and i fc is to be implied, if made, from the fact that the supposed privilege of vending or serving the paper in a particular district was the subject of sale and purchase among the carriers themselves, to the knowledge of the defendant. These sales, it is obvious from the circumstances disclosed, were of the probability pr chance that the business of the establishment would continue to be conducted as theretofore, and that the assignee would stand upon the same footing as the previous carrier, because it was indifferent to the defendant what person purchased his paper and supplied a given.district, provided the number of copies disposed of was the same. There was nothing in all this resembling a contract for an exclusive privilege between the proprietor and the carrier. The nature of the business repels any such presumption. It was conducted upon the cash system. The paper was sold, as the witnesses inform us, to whoever would purchase, and the vendor had the right to give or sell his property, like an article pf merchandise, whenever or wherever he could find a purchaser. That one carrier would abstain from encroaching on the district of another is probable, for such was their interest; but that no such respect was paid to their supposed rights by others is apparent from the fact that boys were in > the practice of vending the papers all over the city. No complaint on this account was ever made to the proprietor of the paper. This would have been the natural course had the carriers supposed that their privileges rested in contract. But the only method of ridding themselves of this interference which seems to have occurred to them, was, as one of them stated, to “ scare them off.” There can be no doubt that these boys had as perfect a right to sell their papers in the fifteenth ward as the carrier or the proprietor of The Herald himself. ¿ -

On the whole, I agree fully with the learned judge who presided at the trial, that there was no fact established by the answer or the evidence from which a contract, could be implied according to the allegations of the plaintiff. The complaint was therefore properly dismissed, and the judgment of the superior court should be affirmed.

Parker, J.

It is not claimed that there was any express agreement with the defendant, nor does it even appear that he had any personal knowledge of the transaction between Winyates and the plaintiff. But a contract is sought to be implied from the fact that the defendant’s agents at the office continued to deliver papers to the plaintiff as the carrier for the fifteenth ward, on the same terms as to his predecessor, for more than two years after the route was purchased from Winyates. It is insisted that this was a recognition of a right in the plaintiff to the route, and that it was a violation of that right to employ another carrier upon the route in the place of the plaintiff. The fact that the plaintiff paid $575 for the route imposed no obligation upon the defendant. The defendant was in no respect a party to that contract, but was in fact* entirely ignorant of it; and unless Winyates himself had some right as against the defendant, which is not shown, he could transfer none to the plaintiff. If it was in Winyates a mere privilege or expectation, or if it was even a contract, terminable at the pleasure of the defendant, it could certainly be no more in the plaintiff. It established nothing as against the defendant to show that there was a usage, as between earners, by which the routes were sold by one carrier to another. A mere privilege may be the subject of sale, if the purchaser is willing to run the risk of failing to enjoy it. Nor can such a mere privilege be transformed into a legal right for a fixed term of time, because it was the practice at the defendant’s office to book the purchaser as the carrier, and to continue thereafter to deliver to him the papers for the route. That shows a recognition of a person as carrier for the time being, but nothing more. It implies no intention to continue him, except at the pleasure of the publisher.

There could be no contract in such case without mutuality. Suppose the plaintiff had refused to carry any longer, will it be contended that he would have been liable in damages to the defendant for such refusal ? If there was an agreement, it was as binding upon the plaintiff to receive and distribute papers, as it was upon the defendant to supply them ; or suppose the defendant had concluded to stop the publication of his newspaper, will it be contended that the plaintiff could have had an action against him for not continuing to furnish him papers ? His loss in that case would be as great as in this, and would be equally the breach of an agreement, if there was in fact any agreement to continue to supply the plaintiff with newspapers. If there was an agreement, when was it to end? The plaintiff had enjoyed the profits of the place for two years. Is it claimed there was no limit to the extent of its duration ? If there was any agreement proved, we should look to the contract itself for its terms, or if a general contract was established, we might look to usage to limit its duration. But when there is no contract proved, nor any usage implying one, we need hardly inquire what would have been the terms and limit of a contract, if one had been made.

The plaintiff’s counsel has referred us to the English law, by which a servant is entitled to one month’s notice before he is discharged. But that rule rests entirely upon custom. Littledale, J., said, in Williams v. Byrne (2 Nev. & Perry, 139): “The case of a menial servant has been put, who may be discharged at a month’s notice, but that is not a matter of law. It is a custom that might be put on the record as a fact, and the jury would find that it existed.” And in that case the court held that the month’s notice was not applicable to a reporter for a newspaper, no such custom being proved applicable to reporters. And in Fawcett v. Cash (5 Barn. & Adol., 904), the court held it was not applicable to a warehouseman who was dismissed from his employment; and in Beeston v. Collyer (4 Bing., 309), it was held not to be applicable to clerks or servants in husbandry. All these decisions were made on the ground that no custom, as to such classes of persons, had been proved. But these cases can have no possible application; for conceding even that a contract of hiring was in this case established, the plaintiff has failed to prove any custom as to its extent or as to the notice to which the plaintiff would have been entitled.

Whether the plaintiff is to be regarded merely as a daily and favored wholesale purchaser of papers for distribution among his subscribers, or as the agent of the defendant for the purpose of such distribution, is I think entirely immaterial. In neither case had the plaintiff any legal right to continue to act in such capacity against the will of the defendant, and in either case I think it was the right of the defendant, as well as of the plaintiff, to terminate their business relations at pleasure.

The judgment of the supreme court must be affirmed.

The whole court concurring,

Judgment affirmed.


source: Caselaw Access Project

author: Edwards, J. Denio, J.

license: Public Domain

text:
    McGregor against Brown.
    The cutting of trees by a tenant for years, except under special circumstances, is an act of waste.
    In an action by the landlord against the tenant for such waste, evidence of a parol consent by the landlord to the cutting of the trees, on condition that the tenant would clear and seed down the land where the trees were cut, is not admissible; such consent being a mere license, and requiring a writing to give it validity. (2 R. S., 334, § 1.)
    The opinions of witnesses that such act was not injurious to the inheritance, and therefore not waste, are inadmissible.
    A sale of standing trees by parol is a sale of an interest in lands, and void by the statute of frauds. Per Edwards, J.
    Action commenced in the supreme court in 1850, for waste committed by the defendant upon a farm occupied by him as tenant of the plaintiff, in the town of Delhi, Delaware county. The defence set up by the answer was, that the acts complained of were done by the express permission and license of the plaintiff.
    Upon the trial, before Mr. Justice Gray and a jury, in June, 1850, it was proved that the defendant had cut and sold, for his own benefit, a quantity of trees and timber growing upon the premises. Upon the part of the defendant, a witness testified that he had been present at a conversation between the parties, previous to the cutting of the trees; that the defendant at that time asked the plaintiff for two or three acres of wood, saying that he had more hay to winter cattle than he had pasture to pasture them, and that he would seed down the land that he cleared; that the plaintiff said he was welcome to the wood if he would clear it up and seed it down. To this evidence, or any evidence of a parol license to do the acts complained of, the plaintiff objected. The court overruled the objection, holding that although the defendant could not be permitted to show a mere parol license to do the acts, it was nevertheless competent to give in evidence a parol agreement mutually beneficial to the parties, by which the wood was to be cut and the land seeded. To this decision the plaintiff excepted.
    Another witness for the defendant was asked by him the following questions, both of which were duly objected to, the objections overruled, and exceptions taken: “ Is there pasture land upon the place proportionate to the quantity of meadow land?” Answer: “ There is not.” “Do you consider the cutting of the timber a benefit to the inheritance ?” Answer: “ I should consider it a benefit.”
    The defendant had a verdict, which was sustained at general term in the sixth district. The plaintiff appealed to this court.

      N. Hill, Jr., for the appellant.
    I. The judge erred in admitting evidence of the alleged agreement or permission to cut and use the trees, and in charging that, if they were cut under the agreement, the plaintiff could not recover. (2 R. S., 428, § 1, 3d ed.) 1. The arrangement sworn to was void as an agreement, and could only operate, if at all, as a license. (1 Denio, 550; 2 Sold., 288, 9.) 2. The statute virtually declares that no license whatever, though executed, shall excuse the tenant, unless in writing. (2 R. 8., 428, § 1, 3d ed.; id., 432, § 1, 3d ed.) 3. The plain object of the statute was to save the landlord from the effect of such testimony as was relied on bv the tenant in this case.
    II. The judge erred in allowing John Aiken to answer the questions put to bim by the defendant; and for this reason alone the judgment should be reversed. 1. The cutting of the trees was clearly waste, as it permanently changed the nature of a part of the thing demised. (Livingston v. Reynolds, 26 Wend., 122; Cole v. Green, 1 Lev., 309; Kidd v. Dennison, 6 Barb., 13, 14.) 2. The object of the ques tions was to show that the tenant, though he had changed the nature of the thing demised, .had not injured but benefited it, an inquiry wholly irrelevant., (Livingston v. Reynolds, supra; Cole v. Green, supra; London v. Greyme,. Cro, Jac., 182; Kidd v. Dennison, supra.) 8. Both-questions, moreover, and especially the second, called for the mere opinion of the witness on this irrelevant topic, which was plainly improper. 4. The testimony having been improperly admitted; it is impossible to tell how far it affected the verdict; nor will the court inquire as to this on a bill of exceptions. [Myers ,v. Malcolm; 6 -Hill, 296 ; Farmers' Bank v. Whinfield, 24 Wend., 426, 7; Northrop v. Wright, 24 Wend:, 221; Cunlijfv. Mayor, fyc-., of Albany, 2 Barb., 190.)

      Robert Parker for the respondent.
    I. The first objection was made solely on the ground that . the direction or permission of the landlord should have been in writing.. The justice throughout the suit excluded evidence to show that the several acts complained of as waste were done by the license and consent of the appellant, holding that, under the statute (2 R. S., 258, § 1, 2d- ed.), such evidence was inadmissible. The justice, however, held that, if the acts complained of by the appellant were done by the respondent under the special direction of the appellant, at his-request and, for his benefit, and not under a parol license merely, then such evidence was admissible. This holding was clearly right. The appellant having himself procured the acts to be done, was estopped, from denying the right of the defendant. He could not induce the defendant thus to act, and then (the defendant having acted under his direction) turn round and allege .the acts to be waste. It was not such an interest in land, either, ■ as required a: conveyance or authority in writing. All that is claimed of it is, that it was a sufficient, authority to prevent the appellant from maintaining. waste. (10 Barb., 888.) ...

      II. The second exception was not well taken. The question for the jury to try was, whether the acts complained of as waste were prejudicial to the interests of the plaintiff. (3 Wend., 341; 11 Mete., 304.) The questions were asked in reference to this point. If not pertinent to that issue, then they were immaterial and could not have prejudiced the plaintiff. (Hayden V. Id aimer, 2 Hill, 205, et seq.; 7 id., 385, S. C.; 2 Comst., 98.) ,
   Edwards, J.

Upon the trial of this action the plaintiff’s counsel objected to the admission of evidence of a parol license to commit the acts of waste complained of. This objection was sustained, but at the same time the court ruled that it was competent for the defendant to give in evidence a parol agreement, mutually beneficial to the parties, by which wood was to be cut and the land seeded; or in other words, for it seems to me that such is its meaning, that, the defendant might prove a contract of sale of the wood to him, founded on the consideration that he would seed down the land that he cleared. To this ruling the plaintiff’s counsel excepted, and I think that the exception was well taken. In the case of Green v. Armstrong (1 Denio, 556), the court, after a thorough examination of the cases, held that a parol contract for the sale of growing trees was void by the statute of frauds, it being a contract for the sale of an interest in land. This decision, as far as I am aware, has been received with approbation, and may be considered as the settled law of this state.

A witness was afterwards introduced who was asked whether there was pasture land upon the place proportionate to the quantity of meadow, and also whether he considered the cutting of the timber a benefit to the inheritance. Both of these questions were objected to and the objection was overruled, and the plaintiff’s counsel excepted.

When the law defines waste to be whatever does a lasting damage to the freehold or inheritance, it does not mean that it is to be left to a jury to determine, according to the opinions - of witnesses, whether the act complained of causes such damage. Certain acts are, in contemplation of law, per se injurious to the freehold# and the only subject of inquiry for the jury is whether such acts have been committed. By the law of England it is considered waste to cut timber. It is also considered waste to convert wood-land into meadow or pasture or arable land. These rules have been modified to some extent in this state, in reference to wild and uncleared lands leased for agricultural purposes. (Jackson v. Brownson, 7 John., 227; Kidd v. Dennison, 6 Barb., 9.) This has been done from the necessity of the case. The premises upon which the waste is alleged to have been committed in this case, as appears by the bill of exceptions, had been cleared and cultivated. They were let as a dairy farm, and there was a covenant against waste. It is not pretended that all the wood cut down was required for fences or repairs of the buildings, or for any other purpose for which it might be legally used by the tenant. Under these circumstances, I think that the clearing of the wood-land was in itself an act of waste; and whether it was so or not is a question of law, to be decided by the court and not by the opinions of witnesses. Neither were the questions objected to admissible in reference to the amount of damages. The exceptions to the ruling of the court, in reference to both of the questions, were well taken, and a new trial should be granted. As none of the other exceptions are insisted upon by the plaintiff I have not considered it necessary to allude to them.

Denio, J.

I am of opinion that two errors were committed on the trial of this cause. First. The farm which the defendant held under a lease from the plaintiff contained about two hundred and thirty or two hundred and forty acres, seventy or eighty acres of which remained in forest and the remainder was cleared. The defendant was proved to have cut down about an acre of the timbered land; and he sold a part of the wood in market. He was permitted to prove, against an objection by the plaintiff, that he applied to the plaintiff for two or three acres of wood, saying that he had more hay to winter cattle than he had pasture to pasture them, and that he would seed down the land that he cleared; that the plaintiff said that the defendant was welcome to the wood if he would clear up and seed down the land on which it stood; and-the jury were charged that if this was an agreement for the mutual benefit of the parties, and the wood was cut in pursuance of it, it was a defence to the action. The action was for waste, and the following statutory provision applies to the case: “If * * * any tenant * * * for term of life or years, * * * shall commit waste * * * of the houses, * * * lands or woods, * * * without a special and lawful license in writing so to do, they shall respectively be subject to an action of waste,” (2 R. S., 334, § 1.) The object of the qualification respecting the evidence of a license is the same with those provisions of the statute of frauds requiring certain transactions to be put in writing, namely, to prevent agreements from being set up by false or mistaken oral testimony. I do not think the annexing a condition to the license (for this is what the evidence at most amounted to) renders the parol proof of it anymore competent than it would otherwise have been. Nothing like an agreement was shown. The defendant did not agree to clear or seed down any of the wood land, but only that he would seed down what he should clear. It was a clear case of a license proved by parol against the express provision of the statute.

Again, a witness was permitted to swear that he considered the cutting of the timber a benefit to the inheritance. This was in violation of the rule so often laid down within the last few years, excluding opinions except from professional and scientific witnesses, and upon questions of skill and science. Many of these cases are referred to in Dewitt v. Barley, decided at the last term. (See 5 Seld., 371.)

The judgment of the court below should be reversed and a new trial granted. °

All the judges concurred.

Ordered accordingly.