Briggs Iron Company vs. North Adams Iron Company, 12 Cush. 114

Shaw, C. J. This is an action of trover to recover damages for a large quantity of iron ore, the property of the plaintiffs, alleged to have be< n converted by the defendants to their own use. The ground of the plaintiffs’ claim is, that they were owners of, and had good title to an ore-bed in the town of Lanesborough; that certain persons, wrongfully claiming to have title thereto, have dug large quantities of ore; that from these persons, having no property in, or authority to sell the same, the ore had been carried away, and converted by the defendants to their own use.

We are to assume for the purposes of this argument, that the plaintiffs had established their title to the ore-bed as claimed. The defendants, amongst other grounds of defence, offered a bond in the penalty of $10,000, given to said Briggs Iron Company, the plaintiffs, by John Adams, James E. Marshall, and Nelson H. Stevens, some, or all of whom, had been concerned in digging said ore under the claim of title adverse to that of the plaintiffs.

The condition of the bond recited these adverse claims, the fact that the said Stevens and others, under such claim of title, had dug large quantities of iron ore, and that a suit in equity was then pending, in which said title was involved, and by which it was expected to be settled; it then stipulated that in case the said title should be found in favor of the Briggs Iron Company, to pay all damage occasioned to said company, by said entries, diggings, and carrying away of said ore. This evidence was objected to by the plaintiffs, and rejected by the court, and a verdict was returned for the plaintiffs.

A new trial is now moved for, on a report of these facts by the judge who presided at the trial. On reviewing the subject, the court are of opinion, that this evidence ought to have been admitted, and if the facts which it tended to prove, were satisfactorily proved, viz : that the parties had agreed upon a mode of adjusting the amount to be paid for the ore taken out of the bed, whether carried away or not, and for receiving the payment therefor, it would be a bar to this action. The ore mentioned in said bond was the same ore, for the conversion of which this action of tort is brought.

The title having been determined in favor of the plaintiffs, they had security, by compact, for the same damages sought to be recovered in this action. A stipulation to pay, was equivalent to a promise to pay what it was worth. Hoadly v. McLaine, 10 Bing. 487. The court are of opinion, that the recitals and stipulations in the bond thus taken, amounted to a waiver of an action of tort, and operated as a license for taking away the ore already raised, and that such license extended, not only to the obligors, but to all persons purchasing from, or employed by them.

Of course, then, the purchase by the defendants, from those thus licensed, was not a tortious conversion by them, for which this action will lie. Verdict set aside; new trial in this court.