#### Flanders vs. Train and another.

F entered land in the name of W, under an agreement by which W was to furnish him with land warrants to enter lands, and the profits of the business were to be divided between them. Afterwards T agreed with F to cut the growing timber, and gather up the logs already cut on said land, and deliver one half of them to F, retaining the remainder for his services. T cut and gathered the logs and removed them from the land, but delivered none to F. Subsequently W executed a quit claim deed of the land to F. *Held,*in an action by F against T, that F at the time of making the contract with T, had such an interest in the timber growing and the logs lying on said iand, as enabled him to make a valid contract for their removal; and that he was entitled to recover for a breach of said contract.

The giving of an erroneous instruction, is no ground for reversing the judgment, if it appears that the instruction, was, upon the facts of the case, immaterial, and could not prejudice the appellant.

Instructions may properly be refused which are not pertinent to the case.

APPEAL from the Circuit Court for *Sauk*County.

The nature of this action is stated in the opinion of the court. The instructions referred to, as asked by the defendants and refused by the circuit court, were as follows: “1. In all cases of breach of contract, if the party injured can protect himself from damage at a trifling expense, or any reasonable exertion, he is bound to do so; he can charge the'delinquent party only for such damages as, by reasonable endeavor and expense, he could not prevent. 2. In case of breach of contract to perform work, where nothing has been paid, the measure of damages is the difference between what *597it would cost to get tbe work done, and wbat was agreed to be paid for it. 3. In case a party is sued for tbe forxnance of a contract for tbe performance of labor, and tbe party so sued bas done labor enough under tbe contract to exceed in benefit to tbe plaintiff the damages be bas sustained by such breach, and tbe plaintiff, after such breach, accepts of tbe avails of such labor, when they were of such a nature that be might have rejected them, tbe defendant is entitled to recover such excess. 6. If tbe plaintiff, as agent for another, purchased tbe lands on which tbe logs were cut, for such other person in such other person’s name, with funds provided by tbe third person aforesaid, under instructions to sell tbe lands on time for such other person, and tbe plaintiff to receive one-third or one-half of tbe net profits of tbe transaction, and this was all tbe claim tbe plaintiff bad in or to tbe lands and timber or trees thereon; it was not such title or authority on tbe part of tbe plaintiff as authorized him to remove or cause to be removed from tbe lands tbe timber thereon standing or lying.” Which last instruction tbe court gave with tbe following qualification: “ If in this case you find tbe parties made tbe contract as stated in tbe plaintiff’s complaint, and tbe defendants removed tbe logs in question, according to such contract, to be run to Baraboo, and after-wards so failed to perform tbe contract on tbe ground and for tbe reason that tbe plaintiff bad no such interest in tbe land as to authorize him to cause tbe timber to be removed, and you should find tbe plaintiff bad no such interest in tbe land as to then authorize tbe removal of tbe timber, then tbe plaintiff cannot recover in this suit; but, if you find that tbe defendants did not perform, not on tbe ground and for tbe reason that tbe plaintiff bad no right to remove timber from tbe land, but for some other reason, then tbe question of tbe plaintiff’s right to tbe timber on tbe land is not so material; any proof of any general right or control of tbe land might be sufficient to entitle him to recover, if be bas sustained bis complaint in other respects; and tbe measure of damages is tbe value of tbe logs that should have been delivered at Baraboo, but were not”

Yerdict and judgment for tbe plaintiff.

*598April 10.

*C. 0.*Remington, for appellants,

argued that tbe logs were tbe property of "Webb, wbo owned tbe land wben they were taken, and tbe defendants were liable to Webb, and not to tbe plaintiff; and that tbe motive of tbe defendants in not fulfilling tbeir agreement did not affect tbeir liability. 2 Parsons on Con., 444; *Releer vs.*Moore, 2 Cband., 85; Sedg-wick on Meas, of Dam., 204-8.

Rinches, *Lynde & Miller,*for respondent,

insisted that *Plunders,*having an equitable title to an undivided interest in tbe lands, and having afterwards acquired tbe fee, was entitled to recover. He was bound to warrant tbe title to tbe logs which tbe defendants were to receive in payment for tbe services. *Defreeze vs. Trumpet,*1 Johns., 274; *Heer-mance vs. Vernoy,*6 id., 5; *Dresser vs. Ainsworth,*9 Darb., 619; *Oharnley vs. Dulles,*8 Watts & Serg., 358 ; *Chandler vs. Wiggins,*4 B. Monr., 201. 2. He was a trustee for Webb within tbe meaning of sec. 14, chap. 122, R. S. *Grinned vs.*Schmidt, 2 Sandf. (S. C.), 706; *Minturn vs. Main,*3 Seld., 220 ; *Bogart vs. O'Regan,*1 E. D. Smith, 590. 3. He was at least an agent for Webb, and having made tbe contract in bis own name, could sue in bis own name. Sims *vs. Bond,*5 B. & Ad., 393 ; 2 Smith’s Lead. C., 371.

*By the Court,*

Cole, J.

Upon examining tbe record in this case, we can discern no error in tbe proceedings which we think could have prejudiced tbe appellants. Tbe action was brought to recover damages for the non-performance of a contract entered into between the parties, by which the appellants were to enter upon tbe premises mentioned in tbe complaint, gather up saw logs already cut thereon; cut new logs ; receive a portion of the logs as compensation for tbeir services, and deliver tbe remainder of tbe logs at the respondent’s saw mill at Baraboo. The appellants cut and removed several hundred logs from the premises, but never delivered any of them to the respondent. He therefore brought bis action upon the contract.

An objection is taken that tbe action cannot be sustained for tbe reason that at tbe time the logs were cut and removed from tbe land, tbe legal title of tbe real estate was not in the *599respondent. Tbe lands were originally entered by tbe respondent, in tbe name of one Webb, witb a certificate or land warrant. It appears that there was an agreement between tbe respondent and Webb, by wbicb tbe latter was to furnish tbe former land warrants to enter lands, and tbe profits of tbe business and tbe lands were to be divided between them in certain proportions. Tbe contract between tbe parties to this suit, about cutting and removing tbe logs, was made in December, 1854, and the following August tbe land was conveyed to tbe respondent by Webb. Under these circumstances it is very clear that tbe respondent bad an equitable title to an undivided interest in tbe lands, wbicb equitable title was afterwards made absolute by a conveyance of a legal title of tbe entire premises. And we think it obvious that tbe respondent bad such an interest, as well in tbe timber growing upon tbe lands, as in tbe logs then cut upon them, as would authorize him to make a valid contract of tbe nature of tbe one made witb tbe appellants. It certainly does not lie in their mouth — after having cut and removed tbe timber in pursuance of this contract — to object that tbe legal title was not in tbe respondent, or to raise a question as to whether some*portion of tbe proceeds of tbe timber and logs should not i go to Webb. This is a matter wbicb does not concern them. They were not made tbe guardians of bis rights; and for aught wbicb appears in tbe case, Webb himself may have fully approved of this contract, and relinquished all interest in tbe subject matter of tbe suit. !

It is insisted that tbe circuit court erred in refusing to give tbe first three instructions asked on tbe part of tbe appellants. But these instructions, however correct as abstract propositions of law, were clearly inapplicable to tbe facts of tbe case, and were therefore very properly refused. Here all tbe testimony showed that the' logs and timber taken from tbe land by tbe appellants, bad been disposed of, or were entirely lost through their neglect. Tbe respondent could not, therefore, protect himself from damage at a trifling expense, or by reasonable diligence, as tbe first instruction assumes.

*600Equally clear is it that the case is not at all analogous to where there has been a contract to perform work, where nothing has been paid upon the contract. The appellants agreed to cut and remove certain timber and saw logs, and to deliver a certain portion of them to the respondent. They cut and removed the logs and disposed of them elsewhere.

This observation upon the second instruction is alone sufficient to show that the third was likewise entirely inapplicable. The respondent had not in any manner derived any benefit from what the appellants had done under the contract. They had removed the timber from the land and converted it to their own use, greatly to his injury.

The fourth and fifth instructions were given as asked.

The sixth instruction was given with a qualification, which, it is contended, is erroneous. Granting that it was .erroneous for the court to say, that the reason which the appellants had for not fulfilling the contract might in some way affect their liability, still this was immaterial to the facts of the case, and could not have prejudiced the appellants.

The judgment of the circuit court is affirmed.