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.