Burnett v. Beasly, 50 N.C. 335, 5 Jones 335 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 335, 5 Jones 335

JAMES BURNETT AND WIFE AND JAMES A. PAUL AND WIFE v. THOMAS J. BEASLY, Admr.

Where a guardian of infants gave -a license to a party to cut timber on the land of his wards, and the wards, in a suit against the guardian for-a settlement, recovered the money received by him for a,part Of the timber so cat and carried off} it was Held, that they could not sustain an action of trespass against such party, for cutting and carrying off a portion of the timber.

This was an action of teespass, qua/re dailswnfregit, tried before MaNly, J., at a Special Term, 1858, of Beaufort Superior Court. On the part of the plaintiffs, it was proved that "William J. Smith was guardian of the plaintiffs, the children of one Capps, five in -number, two of whom are the female plaintiffs. As guardian of these children, while yet minors, Smith licensed Windly, the defendant’s intestate, to cut timber upon their land. In virtue of which license, Windly did cut eighty thousand feet of timber, for which -lie had agreed to pay Smith $1 per thousand feet, making in all eighty dollars. Windly paid of this sum twenty dollars, and agreed to pay the rest when he should remove the timber from theland. After this, the feme plaintiffs married the other two plaintiffs, and at the County Court of Hyde, the husbands and their wives filed a petition against their -guardian, Smith, for their filial portions. In that suit, -it was -referred to the clerk to state an account -of the amount due from the guardian to his wards. The clerk made a report, stating the account, therein charging the guardian with one fifth of the sum received of Windly for the timber cut, and paid for by him, to wit: fou-r dollars for each of the wards. This report was confirmed, and a j udgment taken by the petitioners for tbe sum reported, and the amount recovered was paid by Windly into the clerk’s office. This action was then brought by the husbands and their wives against the administrator of Windly for cutting and carrying off the timber above spoken of.

The defendant contended that fee receipt from Smith by the plaintiffs of their respective shares of the money received for the timber, was a ratification of the license given by Smith to Windly, and precluded them from recovering in this action. The court refused to sanction the view presented by the defendant, and charged the jury that the plaintiffs were entitled to recover.

The defendant excepted. Yerdict for the plaintiffs. Judgment and appeal by the defendant.

Shaw, for the plaintiffs.

Rodman for the defendant.

Pearson, J.

There is a numerous class of cases in which a party is allowed an election, to treat an act as a wrong, and sue in “ tort,” or to adopt it as having been done by, or for him, through an agent, and sue in “ contract.” But in such cases, it is well settled, that after taking benefit under the act, putting it on the footing of a contract adopted by him, he is not at liberty afterwards to shift his ground and sue for the original act as a tort; because he has elected to waive the “tort.” This is so consonant to the plain principles of justice as not to need an authority to support it; many are cited in the argument, we will refer to but one, Wilson v. Poulter, 2 Strange 859. It was for “trover,” “for ready money.”— The wife of a bankrupt brought to the defendant 3000 in money; at her request he bought with it thirty India and and South Sea bonds, and delivered them to the bankrupt’s wife. The plaintiff, who was the assignee, succeeded in seizing twenty-two of the bonds, and brought this action for the money with which the other eight bonds had been purchased. “The court, without hearing any argument for the other side, were all very clear in opinion that the seizing part of the bonds was an affirmance of the defendant’s act in laying out the money, and that the plaintiff could not avow the act as to part and disavow it for the rest.”

In our case, as the guardian had no authority to sell the timber, the plaintiffs could have sued the defendant for the tort ia the first instance; but after they had taken benefit under the act of their guardian, and received from him a part of the price, as upon a contract which he had made for them, they were not at liberty to “ disavow it for the rest,” and treat the entry of the defendant as a trespass. There is error.

Pee CueiaM, Judgment reversed and a venire de novo.