majority"> AppletoN, C. J.

This is an action of trespass quare clausum fregit. The case comes before us on exceptions. The whole evidence, however, is reported and the counsel for the plaintiff has endeavored to satisfy us that the finding of the jury was against the weight of evidence on various issues raised during the progress of the trial. That may be so, but no motion for a new trial as against evidence has been filed. All, therefore, that remains for us is to examine the validity of the exceptions which have been taken to the rulings of the presiding justice.

It seems that the parties are father and son ; that the defendant conveyed the land upon which the trespass is alleged to have been committed to his son ; that the deed was without consideration and without the knowledge of the son at the time that it was given, and that after the deed was recorded the father remained in possession as before, paying the taxes thereon, etc.

The presiding justice after calling the attention of the jury to the relationship"of the parties and the circumstances of the case, instructed them that to show a license, it was not necessary that there should be a written permission or authority or power of attorney ; that it might be verbal or inferential from circumstances, and then left it for the jury “ to determine whether there was or was not a license for the defendant to do what he did.”

The rulings on these points were in accordance with law. A license may be created by parol. Ricker v. Kelley, 1 Greenl. 117; Batchelder v. Sanborn, 24 N. H. 479. So it may be inferred from the relations of the parties and the circumstances of the case. Lakin v. Ames, 10 Cush. 198.

*225No incorrect rule of law was given to tlie jury. If any further instructions were needed for the better elucidation of the case, the counsel for the plaintiff should have requested them. If there were any error of fact in the finding of the jury it is not before us for correction.

There were trespasses claimed to he committed between different periods of time, as they are specified in the charge of the judge. As to the fact of their commission, that was left to the judgment of the jury.

It seems that the plaintiff on or about the 24th of June, 1868, gave his father a power of attorney, which remained in force until Feb. Í), 1870, when it was revoked and one was given to his (plaintiffs) brother. While this power of attorney was in force, it is not claimed that the defendant is responsible in trespass for any acts done under it.

On the 16th day of March, 1870, or about that time, the power of attorney last mentioned was revoked and a new power given by the plaintiff to his father, which remained in force until its revocation in 1871. The plaintiff seeks to recover for trespasses claimed to have been committed during this last-mentioned period, on the ground that the defendant obtained the power of attorney by fraudulent misrepresentations.

The question of fraud in obtaining the last-mentioned power of attorney was submitted to the jury, and the fact was negatived by their verdict.

But the plaintiff claims that evidence tending to establish the fraud was improperly excluded. In his deposition, in answer to the inquiry why he revoked the power of attorney given his brother, Hartson Harmon, and gave a new power to his father to take charge of and manage and control his real estate, his answer is as follows: “ I received letters from Harris Doe, William Haskell, and Elbridge Haskell, and also other parties, that my brother was going to swindle my father out of all his property; that he was destitute and that I had better put the real estate hereinbefore referred to in my father’s hands.”

*226It is claimed that evidence to contradict the letters thus alleged to be the ground of the revocation of one power of attorney and the giving of another, should have been admitted. But the letters in question only state that “ Oliver and Hartson are trying to hurt your fatherthat “Harts, and the rest of the boys, Will and John, they are trying to get every cent he has got and turn him out for himself; and this land he gave you, they are bound to get it away from him and I think you ought to hang to your father.”

Now, these letters are mainly advisory. They do not say that the father was destitute, but that he might become so, nor that one of his sons (my brother) was going to swindle him out of his property, but the boys were trying to get his property.

Now, however these letters are to be regarded, the evidence offered and excluded can hardly be deemed as contradictory to the statements contained therein. Whether the defendant stated that he had the insurance money received for his mill that had been burnt, whether he had a town order for $400, whether he stated he had money enough to carry him through and did not want any of his son’s help, whether he ever said he had a thousand dollars in his pocket, whether in Feb., 1870, he was worth from $2,500 to $3,000, were questions, howsoever answered, which would not contradict the statements contained in the letters which, as the plaintiff says, induced his action in the premises. As for any and all other purposes, they were obviously immaterial and irrelevant.

So far as relates to the defendant’s letter to the plaintiff, he does not say that was what induced his changing his attorney, but confines himself to what was said by Doe, and the Haskells and other parties, which can hardly be deemed as including his father.

The power of attorney was revocable at the will of the plaintiff. It is not denied that if properly obtained it was a protection to the defendant during its continuance.

It may well be questioned, whether the statements contained in the letters upon which the plaintiff based his action, even if untrue, would avoid and render null a power of attorney under seal. If not, then it was voidable only and in full force until revoked. If *227so, while remaining in full force and not revoked, the defendant would not be a trespasser for acts done under its authority, and the instructions on this point were sufficiently favorable to the plaintiff.

Exceptions overruled.

Cutting, DicKERSon, and Peters, JJ., concurred. DaNEORTh and YirgiN, JJ., concurred in the result.

Citation profile

Relationships

How this case has been treated — in progress