This verdict is to be set aside, and a new tria, granted. The plaintiff has declared only on an account am nexed to the writ. And it has been decided in Stearns v. Washburn, ante, 187, that the price of growing grass, which the purchaser was to cut and remove, but which he omitted to do, could not be recovered on such a count. This case cannot be distinguished from that, and must follow it.
Besides; the plaintiff did not show, at the trial, any authority to sell the standing wood ; and therefore it did not appear that he could, by a sale of it, give to the purchaser any lawful title thereto against the testator’s widow and devisee. The testator devised all his real estate, after payment of his debts and charges of administration, to his widow, and authorized his executor (the plaintiff) to sell real estate, for the purpose of paying those debts and charges, only upon the condition that the widow should so direct. No such direction by her has been shown; nor has it been shown that any license to sell real estate has been granted to the plaintiff by the court of probate, or even that such sale was necessary. Exceptions sustained.