| Me. | Apr 11, 1904
Defendant Banton and Fred J. Fiske, now deceased, made a written agreement with Harry J. Bailey, by which Banton and Fiske authorized Bailey to enter upon certain lots of land, among them lot 22 south of and adjoining the Piscataquis river, in Medford, and cut and remove spruce, fir and pine timber, and pay therefor the stumpage mentioned in the agreement. The settled construction of contracts of this character is, that they are executory contracts to sell the timber after cutting, as personal property, coupled with a license to enter and cut. Emerson v. Shores, 95 Maine, 237.
Under this contract Bailey cut a quantity of timber from “the lower half of lot No. 22.” From this 1180 pine logs, 341 fir logs and 98 spruce logs were taken from Bailey on a replevin writ against him, in favor of William M. Eldridge et al. That suit was tided at the January term of this court for Penobscot County, 1902, and defended by the defendants in this case. The issue in that case was one of title to the logs, based upon the title to the lower half of lot No. 22. The verdict was that the logs were the property of the plaintiff in that action, and not the property of Bailey. There was also a special finding that the plaintiffs and their grantors had for twenty consecutive years occupied lot 22 “actually, openly, notoriously and continuously” before the cutting of the logs replevied. Judgment was finally entered upon the verdict. This judgment conclusively determined, as between these parties, that the land where the replevied logs were cut was the property of the plaintiffs in the replevin suit, and that the defendants in this suit had no title thereto, nor to the logs cut thereon.
The plaintiff claims that the defendants impliedly warranted to Bailey their title to the logs. It is held in this State that no warranty of title is implied in a sale of personal property, where the seller is not in possession of the property, and makes no delivery of it, nor any representation as to the title. In such cases the rule caveat emptor applies. Huntingdon v. Hall, 36 Maine, 503.
But the facts in this case differ from that. Here, in the written license to Bailey it is provided that “said grantee hereby agrees that the said grantor shall reserve and retain full and complete ownership and control of all lumber which shall be cut and removed from the aforementioned premises,” until all matters shall be settled, and the agreed stumpage paid. This language fairly amounts' to an assertion of title by the licensors to the timber on the permitted lands. They could not “res.erve and retain complete ownership” of that to which they had no title. The expression is equivalent to saying, — we now own this timber, and we retain such ownership till payment is made. Such assertion of the title is a warranty of title. This principle is distinctly recognized and affirmed in Huntingdon v. Hall, supra. Such assertion of title is as effectual to create a warranty as actual possession of the thing sold. It having been shown that Banton and Fiske had no title to the logs in controversy, which were cut by Bailey under their permit, there was a breach of their warranty, and for that breach they are liable to the plaintiff.
The rule of damages is the value of the logs at the time when and the place where they were replevied from Bailey, and all costs, if any, to which he was subjected by the replevin suit, less the stump-age price he was to pay under the terms of his permit, to which balance interest should be added from the date of the taking on the replevin writ.
In accordance with the agreement of the parties, case remanded for assessment of damages.