#### John Gilmore *et al. versus*Albinus Wilbur *et al.*

A general parol license by the owner of land, to cut and carry away wood growing thereon, (if available at all,) must be acted on within a reasonable time, and must be considered as applying to the wood as substantially in the state of growth in which it is at the time of giving the license.

What is a reasonable time, the facts being agreed, is a question to be determined by the court.

Such a license not acted upon within fifteen years was held to have become inoperative.

An action for money had and received lies against one who has tortiously taken the chattel of another and manufactured it into a different article, and in that state has sold it and received the money for it.

If a person acting without authority as an agent for the owner of goods tortiously taken, receives other goods as an indemnity and converts the same into money, such owner may affirm the agency and maintain an action for money had and received.

Where one tortiously takes goods by virtue of a sale made by a person acting without authority, the owner may affirm the contract and maintain an action for goods sold and delivered.

As tenants in common must join in an action of tort for an injury to the common property, so they must join in an action of assumpsit when the tort is waived.

Joint trespassers may be sued jointly in assumpsit, when the tort is waived.

Assumpsit brought by John Gilmore and his son John Dean Gilmore, against George Wilbur and Albinus Wilbur *125The declaration contained two counts in indebitatus assumpsit, one, on an account annexed to the writ, for various parcels of wood sold and delivered, the other, for money had and received.

At the trial before *Shaw*C. J., the plaintiffs gave in evidence two deeds, dated in 1803, by which it appeared that they were owners as tenants in common, of a tract of pine woodland in Plymouth woods, known as the 12th lot in the 6th great lot, and they proved that the defendants cut down various parcels of wood on that lot in 1825 and 1826 and converted them into charcoal, and sold the charcoal and received the money for it. It was testified by Melvin Gilmore, son of John, that George Wilbur came to him in June 1825, and said he wished to purchase some of his father’s standing wood on the 12th lot; that his father was absent and he declined acting for him; that George then said he had agreed with Joshua Gilmore for wood of similar quality, and asked if the witness’s father would not probably sell his at the same price, and the witness told him he probably would, but urged him to wait until his father came home ; but he said it was necessary that it should be done immediately.

It further appeared, that deeds of lot No. 11, were made to Samuel Wilbur, the father of the defendants, in 1803 and 1810, and that in 1810 he conveyed to Joshua Gilmore one quarter of all his interest in lots 11 and 12.

The defendants then proposed to show a parol agreement between the owners of lots 11 and 12, that without regard to their respective limits, the whole should be considered as a common property, and particularly that in 1810, at or about the time that Joshua Gilmore became a proprietor under Samuel Wilbur, it was agreed and understood by the plaintiffs and Samuel Wilbur and Joshua Gilmore, that when the wood on these lots should be cut off, they were to cut together, and that Samuel Wilbur should be considered as the proprietor of one half, the plaintiffs, of one third, and Joshua Gilmore, of one sixth of the two lots, without regard to their respective limits. Whereupon it was objected, that this was an attempt to prove a title to real estate or an interest therein, without deed, and that the evidence was not admissible. The object of the *126defendants was, to show that Samuel Wilbur, by force of this agreement, acquired a right to cut wood growing on the plaintiffs’ land, that in virtue of this license he had a right to authorize the defendants to cut the wood in question, that he did in fact so authorize them, and that the wood in question was cut by his order and authority.

Whereupon it was ruled, that as proof of any title or interest in land or in growing wood as such, parol evidence was not admissible ; that such an agreement by an owner of woodland in severalty, as a license to cut and carry away wood, (il available at all,) when no time is limited, must be acted upon within a reasonable time, and must be considered as applying to the wood as substantially in the state of growth which it is then in ; and that such a license not acted upon within fifteen years, is not acted upon within a reasonable time, and will not authorize the person to whom it is given, or any person acting under him, to enter, cut down and carry away the then growing wood. It being admitted that the evidence would not show any such license within fifteen years, the evidence was re jected.

It was then contended by the defendants, that under the circumstances assumpsit would not lie, either for goods sold and delivered, or for money had and received ; but it was proposed to instruct the jury, that if the plaintiffs were the owners of the land, and the agreement above stated was not available as a license or otherwise, then the wood when cut was the prop erty of the plaintiffs, and although it was converted into charcoal, and in that state sold by the defendants and the money received for it, such money must be considered as received to the use of the plaintiffs, and was recoverable in this action ; or if the defendants supposed what passed between them and the son of one of the plaintiffs amounted to a contract, and would be ratified as such by the plaintiffs, and under that belief cut the wood, and the plaintiffs did afterwards affirm the sale by bringing this action for the wood as goods sold and delivered, then the value of the wood might be recovered in this action on the coúnt for goods sold.

; It further appeared in evidence, that ■ while the defendants .were thus cutting wood on lot No. 12, a doubt arose as to the *127tme line of the lot, and upon the line being run, it was found that one Burgess, who was cutting wood on the land of one Hedge, and by his authority, had mistaken the line and had cut 50 or 60 loads on the lot No. 12 ; whereupon the defendants agreed to receive an equal quantity of wood from Hedge’s land by way of indemnity, and it was so received, and, with the wood cut by the defendants on lot No. 12, was converted into charcoal, and sold, and the money received for it.

It was contended that the plaintiffs were not entitled to recover the proceeds of the wood thus received, as the defendants were in fact strangers and wrongdoers, and had no au thority to act for the plaintiffs. But it was ruled, that as the defendants professed to act for the owners of lot No. 12, and in that capacity received an indemnity for wood cut on that lot, it was competent to the plaintiffs to confirm that assumed agency, and to call upon the defendants for a relinquishment of the money thus received as such indemnity ; and that such money was received to the plaintiffs’ use, and might be recovered in this action.

The defendants were defaulted. If in the opinion of the whole Court the plaintiffs were entitled to recover, the default was to stand ; otherwise the plaintiffs were to be nonsuit, or a trial was to be had, as the Court should direct.

*Warren,*for the defendants.

The wood was cut under a license; *Pond*v. *Pond,*14 Mass. R. 403; and the contract being executed, it was not within the statute of frauds. *Davenport*v. *Mason,*15 Mass. R. 92 ; *Crosby*v. *Wadsworth,*6 East, 603; *Rieker*v. *Kelly,*1 Greenl. 117; *Cook*v. *Stearns,*11 Mass. R. 533 ; *Hewlins*v. *Shippam,*5 Barn. & Cressw. 221 ; Com. Dig. *Chancery,*2 C 3, note. From the very terms of the license, it was prospective, and as it had never been revoked, the plaintiffs are not to be permitted to say that it was not acted upon within a reasonable time. *Tillotson*v. *Preston, 7*Johns. R. 285; Viner’s Abr. *License, D, pi. 7.*

*Oct. 27th*

The defendants cut the wood separately, and are improperly joined in the action. *Manahan*v. *Gibbons,*19 Johns. R. 109.

*W. Baylies*and *Cobb,*

for the plaintiffs, cited to the point that assumpsit lies where goods tortiously taken are converted into money, *Jones*v. *Hoar,*5 Pick. 285; — that the defend*128ants were answerable for the wood received from Hedge’s land, *Higginson*v. York, 5 Mass. R. 341 ; *Mason v.*Waite, 17 Mass. R. 563 ; *Hall*v. Marston, ibid. 579 ; Com. Dig. *Action upon the case upon*assumpsit, JE; *Clement*v. *Jones,*12 Mass. R. 60; — and that the supposed license was void by the statute of frauds, Clap v. *Draper,*4 Mass. R. 266 , 2 Stark. Ev. 598, note 1.

*Oct. 29th.*

Wilde J.

delivered the,opinion of the Court. This case is quite clear on all the points. The principle is well established, that where one takes the goods of another tortiously, and converts them into money, the owner may waive the tort and bring an action for money had and received. This was settled in the case of *Jones*v. *Hoar,*5 Pick. 290, and the same principle has been frequently since recognized. Indeed, there is not to be found, as I apprehend, a single case or dictum in which this principle has been doubted.1

It is equally well established, that tenants in common not only may, but must join in an action for any entire injury done to the common property. And this principle is equally applicable to an action for the tort, and to an action of assumpsit when the tort is waived.

We are also well satisfied, that the ruling of the Chief Justice was correct in regard to the license, and that under the circumstances of the case the evidence was not proper to go to the jury.

The parol evidence offered could not prove any title or in terest in the land, but a license merely. And as no time was limited, it could be only acted upon within a reasonable time. What was a reasonable time, the facts being agreed, was within the province of the court to determine, and the determination we think was correct.

And besides, the license, if it had continued in force, was not pursued. The agreement was, that the parties should cut together. This clearly would not authorize one of the parties to go on and cut without notifying the other party.

On no ground, therefore, can the defence be maintained, and the default must stand.

1

 See *Hill*v. *Davis,*3 N. H. R. 384; *Allen*v. *Ford,*19 Pick. 217.