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McMaster v. Vernon.

ments made at New Orleans, by the request of the defendants, in establishing and putting into operation two brick machines.

Two distinct accounts are produced in evidence. One relates to the first machine for making bricks, the other to the second. The latter will be first referred to.

I. This account, as to the second machine, begins January 3d, 1833, and closes 12th of June, 1833, with a balance of $4,153 31 of debits, and this is closed by a credit of two drafts on S. Vernon, of Newport, for $4,350 94, exchange and interest being deducted, $198 69.

The account is carried on at folio 172 (a confusing transposition in printing), when the drafts are re-charged under date of July 13, 1836, with interest. Certain other small charges are added of about $226, and the account ends (with $810 96 of interest added) in a balance of $5,290 65.

This account was the subject of an action brought by Gale, assignee of the plaintiff, in Rhode Island, against P. H. Vernon, one of the partners, singly. The judgment was for the exact amount of the drafts, $4,350 94.

It is insisted that the evidence of Knowlton raises a case fit to go to the jury, whether the defendants had not undertaken to pay all expenses attending the trial of the second machine; and Millandon proves expenses (if his evidence is admissible) for the second and third trial, of $1,751.

It is certain, however, that Gale opens an account for this second machine with P. H. Vernon, and brick machines only, and other evidence tends to show that he looked to him only.

The questions are rendered unimportant by the effect which the law gives to the judgment obtained in Rhode Island. This was obtained against Philip H. Vernon, in November, 1833, upon the identical debt incurred for the second machine. Vernon was a partner in the firm now sought to be charged on this account; and so the question distinctly arises as to the force of that judgment.

The authorities are decisive that a judgment obtained on a note, given by one partner for a joint liability, extinguishes the demand. If the case of Peters v. Sandford, 1 Denio, 224, is not overthrown, this is unquestionable law. The suit in

McMaster v. Vernon.

Rhode Island was upon P. H. Vernon's drafts on his father, S. Vernon, at Newport.

The case of Waydell v. Luer, 5 Hill, 448, relied upon by counsel, was a case of a mere note given by one partner. It was held not to extinguish the joint liability. The case of a judgment on such a note is very different.

Roberts v. Smith, 18 John. R. 459, applied the doctrine of extinguishment of a joint responsibility by a judgment against some of the parties to the case of dormant partners. But relief probably could be had in equity. (Watson v. Owen, 1 Rich. R. S. C. 111; Renny v. Martin, 4 John. C. R. 566.) See also Smith v. Black, 9 Serg. & Rawle, 142; Pierce v. Kearney, 5 Hill, 82.

We are clearly of opinion that the verdict cannot be interfered with, so far as this part of the case is concerned.

II. The other branch of the account relates to the expenses and advances connected with the first machine. There is not the slightest evidence to render the defendants liable for any part of this account except as to the item of $250. Indeed, this becomes the only question, in the whole cause, upon which a doubt can arise.

That item is sought to be supported by a letter of the defendants, of the 6th of February, 1830, engaging to be responsible, under certain conditions, for the expense of putting up the first machine, to the limit of $250. Other corroborative circumstances are referred to.

The judge, at the trial, excluded this evidence from going to the jury, "unless the advances were proved to be made, in setting up the machine for Mr. Hearsey, as specified in the letter of the 6th of February, 1830."

We have carefully examined this point, and are of opinion that there was not error in this ruling of the judge, and that the verdict cannot be interfered with even upon this, the only question, in the case, of any difficulty.

The application for a new trial is denied with costs.

Jamieson v. Millemann.

JOHN JAMIESON v. DIEBOLD MILLEMANN.

The main distinction between a grant and license to enter upon lands is, that the latter, whether made by parole or in writing, is, in all cases, revocable at pleasure The single exception is where the license is annexed as an incident to a valid grant, and its exercise necessary to a beneficial enjoyment of the grant. A parole license that, if held to be irrevocable, would operate as a transfer of an estate or interest in land, is wholly void, except as a justification for acts done under and prior to its revocation.

In such cases, although the licensee in acting under the license has incurred expenses, a tender of amends is not a condition precedent to a valid revocation. Held, upon these grounds, that the charge of the judge upon the trial, that the plaintiff had a right to revoke a license set up as a defence without a tender of amends, and that the defendant was answerable for all damages done by him after the revocation, was correct.

(Before DUER, BOSWORTH, and SLOSSON, J.J.)

April 3; April 29, 1854.

THIS was an action to recover damages for an entry, by the defendant, upon the plaintiff's close, a lot of ground on Twentysixth street in the City of New York, and digging and carrying away the soil.

The answer of the defendant denied that the plaintiff was entitled to the possession of the lot described in the complaint upon which the alleged trespass was committed, and averred that he, the defendant, was the owner thereof in fee, and that when he purchased the same he received from the plaintiff full license and perinission to enter and build an ice-house and smoke-house thereon, and that his entry, and the excavations made by him, were under and by virtue of this license.

Upon these pleadings the cause was tried before the Chief Justice and a jury in October, 1853.

The plaintiff proved that he was entitled to the possession of the premises in question under a lease for five years, of which more than two were unexpired when the alleged trespass was committed; that the defendant entered thereon by workmen in his employ, and under his direction, in the month of March, 1853, and made a large excavation with the view, as he averred,

Jamieson v. Millemann.

to the erection of an ice-house; and that he continued the work for some days after he was expressly forbidden by the plaintiff, and until restrained by an injunction.

The defendant proved that in November, 1852, the fee of the lot held by the plaintiff under his lease was conveyed to him for a valuable consideration, and that before and after the purchase the plaintiff had said that he, the defendant, might enter and build an ice-house upon the lot if, by so doing, he would not injure the window-lights and alley-way of the plaintiff, and that the entry of the defendant was after this permission had been given, and for the sole purpose of building an ice-house.

The Chief Justice, in charging the jury, said that the plaintiff had a right to revoke the license given by him without any tender of amends to the defendant, and that for all damages done to the lot by the defendant and his workmen, after such revocation, the defendant was answerable. To this part of the charge the counsel for the defendant excepted.

The jury found a verdict for the plaintiff, and assessed his damages at $95.

The verdict was taken, subject to the opinion of the court at General Term, with liberty to the defendant then to move for a dismissal of the complaint.

L. B. Shephard for the defendant.

I. The complaint in this action should be dismissed. 1. The permission of Jamieson that Millemann might build an ice and smoke-house was a valid license, although by parole. It was not designed to convey any interest in the land, but merely a right to do an act upon it. It did not absolutely exclude the licensor from the use of his land, nor was the ice-house contemplated by it a permanent structure within the New York and Massachusetts cases cited, viz: 3 Kent. Comm. 452; Barnes v. Barnes, 6 Vermont, 388; Ameriscoggin v. Bragg, 11 New Hampshire, 102; Woodbury v. Paishley, 7 id. 237; Mumford v. Whitney, 15 Wendell, 380; Houghtaling v. Houghtaling, 5 Barbour, 383; Davis v. Townsend, 10 Barbour, 333; Miller v. The Auburn R. R. Co., 1 Hill, N. Y. R. 61; Stevens v. Stevens, 11 Metcalf, 251. 2. As the question is presented in this case

Jamieson v. Millemann.

between the grantor and grantee of the license, it is proper as a principle of equitable estoppel, which prevents the plaintiff from setting up a right, inconsistent with his license, to the prejudice of the defendant. (Rerick v. Kern, 14 Serg. & Rawle, 267; 2d Hare & Wallace, American Leading Cases, p. 524.) 3. Millemann having incurred the expense of the excavations previous to the 7th of March, was entitled to a tender of amends upon revocation of the license before he could be stayed from proceeding under it. (3 Kent. Comm. 452; Addison v. Hack, 2 Gill, 221; Ameriscoggin v. Bragg, ut supra; Woodbury v. Paishley, ut supra; Rerick v. Kern, ut supra.)

A. Mathews for plaintiff.

I. The only question in the case is contained in the exception to the charge, and this was correct both as a mere proposition of law and as warranted by the facts in this case. 1. The "license" claimed was to erect a permanent structure for a permanent purpose, was "an interest in lands" (an easement and not a mere license), and by statute void without a grant in writing. It was even more than an easement, it was a usufructuary right to continual exclusive possession, use, and occupation of the land in question. (2 R. S. 134, § 6, 135, § 8; Fentiman v. Smith, 4 East. R. 107; Hewlins v. Shippan, 5 Barn. & Cres. R. 221; Bryan v. Whistler, 8 Barn. & Cres. R. 288; Crocker v. Cowper, 1 Cromp., Mees. & Rose, 418; Bird v. Higginson, 4 Nev. & Man. R. 405; Wood v. Leadbitter, 13 Mees. & Welsby R. 838; Philips v. Thompson, 1 Johns. C. R. 145; Thompson v. Gregory, 4 Johns. R. 81; Jackson v. Buel, 9 Johns. R. 298; Noyes v. Chapin, 6 Wend. R. 464; Mumford v. Whitney, 15 Wend. 380; Miller v. Auburn and Syracuse R. R. Co., 6 Hill R. 62; Green v. Armstrong, 1 Denio R. 556; Pitkin v. The Long Island R.R. Co., 2 Barb. C. R. 221; Wolff v. Frost, 4 Sand. C. R. 72; Pirrepont v. Barnard, 2 Seld. R. 279; Brown v. Woodworth, 5 Barb. S. C. R. 550; Houghtailing v. Houghtailing, 5 Barb. S. C. R. 357; Veile v. Osgood, 8 Barb. S. C. R. 130; Brydges v. Purcell, 1 Dev. & Batt. R. 49; Hayes v. Richardson, 1 Gill. & Johns. R. 382; Prince v. Case, 10 Conn. R. 375; Cook v. Stearns, 10 Mass. R. 533; Ruggles D.-III.

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