1. The pleadings and the evidence, so far as material, will be found in the official report. It will be seen by reference to the pleadings that the plaintiffs sought to-recover upon one or the other of two theories set out in the declaration. One of these theories was, that they had purchased a quantity of wood, consisting of a number of trees which had been felled by the testator of the defendants and were lying upon his land; that he warranted that there were 440 cords; that they paid him $150 for the trees as they lay upon the land, and that there was a breach of the warranty in that they did not receive that many cords, because the executors refused, to allow them to enter upon the land and cut, split and remove the trees. The other theory was, that they purchased from the testator this quantity of wood, and that he delivered to them five cords of it before his death, and that after his death his executors refused to deliver the rest of the wood when requested to do so, whereby the plaintiffs were damaged, etc. Upon both of these theories the trial judge gave the same'charge to the' jury in relation to the measure of damages. After reciting the pleadings, he instructed them that the-plaintiffs would be entitled to recover against the executors the market value of the Wood the former had failed to cut by reason of the refusal or objection of> the defendants to allow them to go upon the land and. *704cut or haul it away. ¥e think this chax’ge was ex’ror, as applied to the original declaratioxx, which, in substaxxce, was an action for breach of warranty. Where one sells to another a quantity of wood lyixxg upon his laxid, receiving a gross price therefor, upon an estimate that the quantity will prove to be so many cords of wood, and warranting that the quaxxtity shall consist of that number of cords, he is liable upoxi his warraxxty for axiy deficiency in the estimated quantity; but the measure of damages for a breach of the warraxxty is xxot the market value of the wood, but a due proportion of the purchase moxxey, with interest thereon. To illustrate : If the testator guaranteed that there were 440 cords and the purchasers received only one foux’th of this quantity, the-vendor or his executox’s would not be liable for the max’ket value of the three fourths not delivered, but would be liable only for three fourths of the purchase money, in an action for the breach of the warranty. Upon the other theory of the case, if the testator had xxot completed the delivery of the wood at the time of-his death, it was the duty of his executors to complete it, and if they failed or refused to do so when requested, an actioxx could be maintained against them ixx their representative capacity, and the measure of damages in that case would be different from that above announced. In the latter case they would be liable for the max’ket value of the wood as it lay upon the ground at the time the delivery ought to have beexx made. This measure would apply to all the wood actually there which the executox’S ought to have delivered, but would not apply to any shortage. Touehixxg the shox’tage, that is axxy deficiency in the quaxxtity warranted, the recovery would xxot be for a failure to deliver, but for a breach of the warranty by reason of the non-existence of some part of the wood paid for, axxd as to this the recovery would be measured by a due px’opox’tion of the price paid.
*7052. The defendants were sued in their representative capacity, it being claimed that as executors they refused to allow the plaintiffs to enter upon the land and haul the wood. The defendants denied that they were liable as executors. In our opinion, their liability would depend upon whether the delivery of the wood was completed in the lifetime of the testator. If some of the wood was actually received from the testator and no act remained to be done by him to complete the delivery of the residue, title to the residue, as well as to the part received, vested immediately in the buyers; and if after his death his executors, whether acting professedly in their representative capacity or not, prevented the buyer by any wrongful act from entering upon the land and converting the trees into cord-wood and removing the same therefrom, this would be a mere personal tort by the executors for which they would he liable personally but not in their representative capacity. If they merely objected to an entry upon the land, without doing or threatening to do any violent act to prevent it, the plaintiffs could and should have disregarded the objection, because the law is, that where an owner of land sells trees lying upon the ground, they are personal property, and by the act of selling them he gives.the purchaser an implied license to enter upon the land and remove them, if the purchaser does so within a reasonable time. Having sold the trees and received the purchase money for the same, the title vests in the purchaser, and the implied license to enter upon the land and remove the trees is irrevocable, either by the seller or his personal representatives. See Tiedeman on Sales, §97, and authorities cited.
8. The other question in the case is fully covered by the third head-note, with what has been said above under the first head of this opinion. Judgment reversed.
