Gatzmer v. Moyer

Per Curiam :

After a careful examination of the evidence in this case and the arguments of counsel, we fail to discover wherein the court below committed error. The only material question was the construction of the agreement of the 4th of November, 1880. We can make nothing out of that contract but a positive sale of the timber on the ground, whether standing or fallen, at a fixed price for the stumpage. This vested the property in Bickel; and whether the quantity was to be ascertained by estimation, by scaling on the ground, or by mill measure, was a matter that could not affect the right of property.

The question of delivery did not enter into the contract. If it had, a different phase might have been presented; but here the delivery was of a mere right which was complete the moment the contract was executed. It was not the business of the trustee to deliver the timber, but of Bickel to enter upon the premises and take it. They could have enforced that contract whether he did so take or not; and had the timber been destroyed by fire, storm, or otherwise, the loss must have fallen on the'vendee.

The judgment is affirmed.