The opinion of the court was delivered, April 4th 1870, by
Agnew, J.
The court below having held that an implied warranty of title attached to the sale of the growing timber, the plaintiff in error can only complain of the measure of damages allowed him. The Lloyds sold to Young, Finley & Co. all the white-pine timber growing on tract No. 5281, designating particularly a marked line as the southern boundary of the tract. *204Young & Co. cut the timber up to this line, and were notified by Herdic and others, the adjoining owners, that they had cut over the true line. The logs were brought to the boom at Williams-port, and there were replevied by Herdic & Co. Young & Co., at the request of Lloyd, gave bond and retained the logs. A verdict passed for Herdic & Co. in the replevin, and the record was brought into this court on a writ of error, as to the true measure of damages. We held, that the trespass having been committed under an honest mistake of title, the proper measure of damages was the value of the logs at the boom at the time of replevying, deducting all that it- had cost Young & Co. to cut, haul and drive the logs to the boom : 5 P. F. Smith 176. The effect of this was to give to the owners of the timber its market price when replevied, including all the advantages incident to the ownership; and yet to allow to the inadvertent wrongdoer, all the outlays expended in giving value to the property before it reached the boom. The case went back and was retried on these principles, and a verdict rendered for $7351.75. The plaintiffs in error gave this recóvery in evidence, and claim the amount of the verdict, less the price of stumpage, as their damages under the implied warranty of the title to the growing timber. This sum of $7351.75 represents the value of the timber at the boom, less the expenses of Young & Co. of cutting and getting it there; and therefore consists of two elements of value, to wit: the stumpage or price of the growing timber, and the increased market price by being at the boom. Young & Co. having paid nothing to Lloyd for the stumpage, it is admitted this element is no part of the damage sustained. But they claim the remainder as a profit to which they were entitled as they say under the contract. The contract therefore must govern. It was a sale of standing timber, to be cut and taken on the ground where it stood, at a measurement to be made there before removal. The land therefore was the place of delivery, and not the boom. The loss would be the expense incurred by Young & Co., and any additional value the timber might be shown to have at the place of delivery, beyond the contract price. But Young & Co. having been compensated for all their expenses in the deduction made in the verdict from the price of the logs at the boom; and having given no evidence of any advanced price at the place of delivery, it is evident could recover nothing more than the expenses incurred in defending the action of replevin at the instance of Lloyd. The costs were allowed, and it does not appear that any evidence of other expenses was given. Profits therefore do not seem to fall within the contemplation of the contract. A contract to deliver growing timber trees on the land, to be cut and taken away by the purchaser, cannot be said to have in view the price of a distant market. It would be giving it an unreasonable scope to say that the damagés could be measured by the price at *205any market to which the purchaser might choose to take the logs. The standard would fluctuate with his choice of a market. There being nothing on the face of the contract to indicate an intention to make the boom at Williamsport the destination of the logs, the loss by a failure of title must be measured by the increased price, if any, at the place of delivery, and the expenses incurred on the faith of the contract. Having retained the logs, Young & Co. have lost nothing in the verdict, which represents only the market price at the boom, after their expenses had been refunded.
We perceive no error in the ruling of the judge in the court below, and the judgment is therefore affirmed.