The opinion of the court was delivered, May 5th 1870, by
Agnew J.
This was an action of trespass for cutting standing timber. Its value was therefore to be ascertained by the price of such timber in the vicinity, and not by the net value of the logs cut from it, in a distant market. The evidence shows that the timber had a price where it stood, the value of stumpage, as it is termed, being proved by numerous witnesses. It was not a case of necessity, where the distant market was really the only market, as in the case of The Hazelton Company v. Buck Mountain Company, 7 P. F. Smith 301. We cannot say there was error in the first bill of exceptions.
There was error in the admission of portions of the offer contained in the second bill of exceptions. The purpose expressed was to show a sale of the timber by John Redman Coxe, Jr., to E. B. England, and also his authority to make the sale. This being a suit by the executors of John Redman Coxe, the elder, for a trespass in cutting the timber, the authority to be proved meant his authority to his son and the saleby his son, his sale as the principal. The means offered of proving the fact of a sale by the younger Coxe to England, was a written and sealed agreement dated February 17th 1863, signed by L. Lewis Coxe, a son of the younger John Redman Coxe, as attorney in fact of his father. But there was no competent proof that a power of attorney existed. None was produced or proved by any one who knew it to be an authentic document. John Gr. Hall merely testified that he thought L. L. Coxe had a paper which was a power of attorney from his father to act in the matter. On his cross-examination, he said he knew L. L. Coxe had a power of attorney, but could not say certainly it was present there, nor that he had seen it since, and did not know the handwriting to the power of attorney L. L. Coxe had. He does not undertake to state its contents at all. It is very evident therefore that there was no proof of any authority to execute the agreement of the 17th February 1863. This left that agreement without support, and being inadmissible in evidence, its recital of the contract of 16th October 1858 was also inadmissible as proof of the former agreement. Another objection to the agreement, so far as it was to be used to affect the plaintiffs, is that the power of attorney from the elder to the younger John Redman Coxe, did not authorize substitution of an attorney under him.
Another portion of the offer in the second bill of exceptions is a deposition of Mrs. Mary J. Coxe, the widow of John Redman Coxe, Jr. It was offered to show authority, by a letter, from the elder to the younger John R. Coxe to make sale of the timber. It was inadmissible for this purpose on several grounds. Mrs. Coxe does not testify to any real knowledge of her own of the contents of the letter. What she knows of that part of the letter testified to is evidently what she heard her husband read aloud, and not what she saw. She says she looked over her husband’s shoulder for an instant as he was reading. She remembers the letter beginning, “ My Dear John,” but beyond this she can only remember seeing that the words were what her husband was reading aloud. She cannot say that she remembered any sentences of the letter word for word, as they were written or read aloud. Her account evidently shows a hasty glance only at the letter, while the true source of her recollection was the utterance of her husband. Such an instant sight leaves conviction in the mind that her knowledge was hearsay, and not competent proof of the contents of the letter. In addition to this she does not profess to give the whole contents, and does not even state that this portion of the letter was all that related to the subject of the timber. On this point her testimony falls far short of the evidence of the contents offered in Dennis v. Barber, 6 S. & R. 420; a case which rules this in respect to the proof of contents.
We cannot say there was error in receiving the offer contained in the third bill. The testimony of John Grier of the declarations made by the elder John R. Coxe, was admissible. Its effect would depend on other portions of the case to be viewed in connection with it.
It seems to us that the language of the judge set forth in the 7th assignment of error was but a statement of the effect attributed by the defendants to the agreement to sell timber to R. M. Stevenson. If his own inference it would be incorrect. That agreement was never finished and was found with the endorsement upon it — “not executed.” It could not be inferred from such an incomplete writing found among his papers that the elder Coxe recognised his son’s authority to sell the timber.
It is unnecessary to examine in detail the assignments of error as to the effect of a parol gift of the timber by the elder to the younger Coxe, or the effect of a mere license to cut the timber and use its proceeds. The result of the whole instruction was that if the elder Coxe authorized the younger Coxe to sell the timber and receive the proceeds to his own use, and the timber was actually cut and taken under this authority by the defendants, without a notice to desist or of revocation of the authority, the defendants cannot be treated as trespassers by the executors as plaintiffs in this action. We cannot say this was an error. If the question arose on the sale itself, involving a right of specific performance, or the rights of third parties, the ease might be different as we held in Pattison’s Appeal, 11 P. F. Smith 294, from Tioga county at last term, and the timber would be considered a part of the realty. But when the question is, as here, whether the cutting of the timber was a trespass or not, it would be harsh law that would treat as a trespasser one who had entered and cut the timber by authority of the owner, because his permission was not in writing. These remarks cover the merits of the fifteen assignments of error, and the judgment is therefore reversed and a venire facias de novo awarded.