There was no failure of consideration. The plaintiffs received all they bargained and paid for (Davis v. Bryan, 6 B. C. 651), viz., the right to cut all the pine and oak timber on the farm that they chose to cut before April 1, 1891. It is immaterial that by the contract no property in the standing timber passed to the plaintiffs (Kingsley. Holbrook, 45 N.H. 313,320), and that the agreement operated only as a license revocable at the defendant's pleasure. Howe v. Batchelder, 49 N.H. 204; Abbott v. Baldwin,61 N.H. 583, 586. It was not revoked. It afforded the plaintiffs full protection for all they did under it. It was not the defendant's but their own fault that they did not take the remaining timber within the time limited. He did nothing to prevent them. His deed to Lindsey and Smith had no effect until its delivery, April 7. He is not responsible for the result of the plaintiffs' negotiation with the husband of one of the grantees for an extension of the time.
Judgment for the defendant.
SMITH, J., did not sit: the others concurred. *Page 200