The opinion of the Courts, at a subsequent term, was delivered by
Mellen C. J.The plaintiff claims a right to maintain this action against the defendants, and recover damages for the .alleged trespass by them committed, in virtue of a contract made with Bridge as the agent of Boyd, in April, 1829. It appears that the logs, respecting which the contract was formed, had been before that time cut by the plaintiff, without permission, on Boyd’s land, and were then lying there. It is important to ascertain the nature and extent of the instructions and authority given by Boyd, to Bridge, in relation to the logs in question; and in the next place, the nature and consequences of the contract as made, if made in conformity to the instructions *379and power given by Boyd to his agent. The evidence as to the nature and extent of Bridge’s authority is principally derived from Boyd’s letters to him; for Bridge, in his testimony, speaks of no other or verbal instructions, though he describes them in the manner in which he seems to have understood them in making the contract with Cowan. In Boyd’s letter of August 22d, 1828, which has almost exclusive reference to the logs in question, he says, as to the disposition of them, “ contracts “ should be so made that the logs are to be my property until 44paid for.” In another letter of December 23d, 1828, he says, “ Refer to my advice of August 22d, the logs always to remain “ my property until ample security or payment is made.” Again, in his letter of April 27th, 1829, about the time the contract was made, he says, “I have your favour of the 24th. The care “ of my property in Tom Hegan, was committed to your legal “ knowledge, with my several advices. 1. To request your fath- “ er’s advice respecting the trespass of Cowan.— Next, that “ payment for all logs cut should be made in June ; and, to 44 hold, the logs until absolutely paid for.” In no one of his letters is any authority given, to make any disposition of the logs, by which the property of them should pass to Cowan, until they should be fully paid fot. It is contended by the counsel for the defendants, that the contract made by Bridge was not justified by his instructions ; and that, as they claim under Boyd, they are interested in this question, and, of course, are entitled to contest the validity of the contract, as made by Bridge and Cowan. And they further contend that the contract, as made, amounts to a transfer of the property of the logs to Cowan, and that a lien only is reserved to Boyd, upon the logs, as security for payment; and that such a lien, unaccompanied with a possession of the logs, was of no use to Boyd or of any legal effect, whatever the parties might then have supposed. It here becomes necessary for us carefully to examine the alleged distinction, and the rights which Cowan would have had, in respect to the logs in question, had the contract been made in the spirit and terms of the instruction ; and also what are his rights, according to the terms of the contract as stated by Bridge, in his testimony. His own words are, “ It was agreed that Boyd was *380“ to have a lien upon the timber, until paid according to the “plaintiff’s contract.” — He adds, that Cowan “was to take “ charge of the logs and run them to market, subject to Boyd’s “ lien.” If there is a material distinction between the contract as made, and as it was the duty of Bridge to make it, in pursuance of his instructions, in regard of the legal rights of Cowan under the -contract, then Boyd was not bound by it, and Cowan acquired no rights under it, unless Boyd afterwards ratified and sanctioned the contract, as made; of which fact there is no evidence before us. This is a principle of law perfectly familiar. Faley on agency, 150, 151. The parties to a contract are always supposed to have some object in, or some expected advantage from, the insertion of the stipulations and provisions it contains. In giving his instructions to Bridge, Boyd must have considered the logs as unsafe, under the absolute control of Cowan, as his letters distinctly show, and as liable to be seised by Cowan’s creditors; the object of both parties must have been to secure his interests against that peril, in a manner deemed legal and sufficient. In the action of Waterston & al. v. Getchell, 5 Greenl. 435, the nature of such a contract as was intended by Boyd has been the subject of examination and decision by this Court. The facts were these : The plaintiffs entered into a contract with Robinson, by which they granted him permission to enter upon their tract of land and cut and carry away therefrom, pine timber, which was to be floated down to certain specified places. The contract contained a clause, “ that “ the ownership of all the timber so cut, how or wherever sit- “ uated, should be and continue in the hands of Waterston &f al. “ until all sums due them, &c. shall be paid and discharged, and “all the conditions of this agreement fulfilled.” —Robinson sold the timber to the defendant, who knew of the reservation, and the plaintiffs recovered against him. Suppose the contract had been made as Boyd directed — the property to remain in him till payment, (which has never been made:) how could Cowan be viewed, in a legal sense, any thing more than the agent or servant of Boyd in running the logs to market. In such case the possession of Cowan would have been the possession of Boyd, for the purposes of protecting his own rights, reserved to *381him by the contract. On what principle, then, can the plaintiff maintain the present action and recover damages, equal to the value of the timber ? If he can so recover, of what use is the cautionary proviso in the contract, as to Boyd’s ownership of the logs till paid for ? The whole benefit of it is lost at once, and it is taken from him in direct violation of the property of the owner, Boyd, and contrary to the express agreement of the parties, made for the sole purpose of protecting it from violation. The design was to leave the property in Boyd, to prevent Cowan from disposing of it as Ms own property, or its being attached or seised on execution by his creditors, and in either case, that he might have it in his power, by asserting his rights, to reclaim the property for his own use. His object was to have the legal control of it and of its avails. The contract authorized to he made, was a legal one.
But in the manner the contract was made by Bridge, if Boyd was bound by it, then the property of the logs was transferred to Cowan, subject, it is said, to the lien of Boyd for the amount due. But on this principle there was no lien; for the logs were in the possession of Cowan. “ No lien can be acquired, unless “ the property on which it is claimed, come into the possession “of the party claiming it.” Kinlock v. Craig, 3 T. R. 119; Whitaker on Lien, 65 ; Portland Bank v. Stubbs & al. 6 Mass. 462. Nor continue any longer than his possession of such property continues. Jones v. Pearl, 1 Stra. 556 ; Doug. 97 ; 1 East, 4; 7 East, 5. The consequence of which must be, that the absolute property vested in Cowan, contrary, not only to the repeated directions of Boyd, but the idea and intention of Bridge. However, upon a full view of the facts of the cause, touching this branch of it, and the principles of law applied to them, we are satisfied that the contract made by Bridge and Cowan was not authorized by Boyd’s instructions and think the presiding Judge’s opinion erroneous on this point; and that the contract, therefore, must be deemed a nullity, unless it has been since ratified by Boyd, as we have before observed, of which we have no evidence.
The only remaining question is, whether the plaintiff can maintain the action against the defendants on his alleged pos*382session of the logs, without other title. If they are to be considered as strangers,' and without any privity with Boyd, we think the authorities cited and many others clearly show that the plaintiff is entitled to recover; but is there not a privity existing between Boyd, or his heirs, and the defendants ? On the 23d of August, 1830, Boyd made a deed of the township to Tarhell, one of the defendants; and he conveyed one third part of it to each of the others; and Samuel Adams testifies that in a conversation with Boyd, which was before the deed was given, he told him, after some conversation respecting logs and timber, that he meant to convey all the logs’ and timber, standing or cut, and offered to give a separate instrument for it. He had a right to do this, inasmuch as the contract, made with Cowan was not binding upon Boyd. On this principle, as the defendants claim the logs under Boyd, they are not strangers; and, of course, may defend themselves,- if the sale of the property by Boyd to them was complete and effectual. No writing was necessary to make the sale valid. At the time, the property was lying on his land, and, in his possession : he then had a legal right to dispose of it. But it has been contended that the sale of the timber was void by the statute of frauds, sec. 3d, the property being sold for a price exceeding thirty dollars. To say the least of it, it seems to be a singular objection for Cowan to make. He was no party to the contract, nor representative of a party. The 3d sec. of ch. 53, of the revised statutes declares, that no contract for the sale of goods, &c. for the price of thirty dollars or more shall be allowed to be good, except the purchaser shall accept part of the goods and actually receive them, or give something in earnest, or in part payment, or some note in writing, of the bargain made and signed by the parties^ to be charged by such contract. Here, it is evident, that a party attempted to be charged by the contract, is the person objecting to the charge made; and in all the cases where the question has arisen, a party to the contract or his legal representative made the objection, when called on to perform his contract. Surely no person can plead infancy or the statute of limitations but a party to the contract thus attempted to be avoided, or his legal *383representative. Neither Boyd nor his representatives are dissatisfied with the sale he has made. But, independent of the above observations, by attending to the facts in the case, we perceive that the objection is not supported by facts. When the conveyance of the township was made by Gen. Boyd in August, 1830, the timber on the land, as well as the land, passed into the possession of Tarbell, who made the purchase for all the defendants. In this manner the sale was perfected and complete. 2 Starkie, 609; Searl v. Keeves, 2 Esp. Ca. 598. The next spring, the defendants, by their agent, took the property and removed it, and appropriated it to their use.
On the whole, we are of opinion, that the action is not maintainable upon the evidence before us, and accordingly the verdict is set aside and a new trial granted.