“After the formation of the contract of sale, the question of its effect arises as to when the bargain amounts to an actual sale or when it- is a mere executory agreement. The distinction between the two contracts consists in this: That in a bargain and sale tlie thing which is the subject of the contract becomes the property of the buyer the moment the contract is concluded and without regard to the fact whether the goods be delivered to the buyer or remain in possession of the seller; whereas, in an executory agreement, the goods remain the property of the seller till the contract is executed. This distinction is of importance in two connections: First, as between the parties to the contract, in order to determine upon whom the loss shall fall in case the property is destroyed, for it is plain that if the subject of the sale is lost or destroyed, *433tbe loss must fall upon the party who holds the title; thus if before the transfer has taken place a loss accrues, it falls upon the seller, otherwise upon the buyer; and, second, in order to know what right creditors or subsequent purchasers of one party may acquire as against the other. An executory contract of sale becomes executed upon delivery and acceptance of the goods in accordance with the contract with intent to pass title.” —24 Am. & Eng. Ency. Law, 1045. Mr. Benjamin in his work on S'ales, in discussing executory or conditional sales of chattels in section 320, says: “Where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.” The foregoing is in harmony with the ruling's of our own court. — 5 Mayfield’s Digest, p. 732, § 9, and cases there cited. These cases must he limited however, to contracts wherein it does not appear that an intention to make the sale absolute and complete, without any regard to the performance of these usual prerequisites, at least as to price and measurement.—Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43.
While the contract in question, purports to sell all of the fallen timber on the plaintiff’s land, it is not an executed contract of sale that vested the title into the. ■buyer of said timber eo instante. There were several conditions precedent, and one concurrent with the vesti-ture of title in the buyer. He was to commence cutting and removing for inspection to “Bayou Sara” or “Ohickasabogue” on November 1st, and to cut and have ready for inspection from 50,000 to 60,000 feet on an average each week, during any one month, and that all *434of tbe timber should be cut and ready for final inspection by March 31, 1907. The contract also provided that so much of the timber as was required to be removed weekly was to be paid for as measured in Chickasa-bogue or Bayou Sara, and that, what remained on the land on March 31, 1907, was to be paid for when measured. It is manifest, that the vendor did not sell all the fallen timber unconditionally so as to convey the title to all of same, into the buyer, upon the execution of the contract of purchase. The getting out of a certain quantity within a certain time and having it ready for inspection in one. of the streams mentioned, was of the essence of the contract, was a condition precedent to the right to the other timber, and under no condition was-the title to all of the timber to vest in the buyer until measured, inspected and paid for, either in the streams or upon the land. In other words, the contract required the removal of so much.per month or week, and a failure to comply therewith, could have been waived by the vendor or would give him the right to rescind and sue for the breach, if not waived, and a compliance therewith by the vendee, unless waived by the vendor, was a condition precedent to his acquiring the remaining timber at the agreed price. Therefore, in no event could the title to all the timber become vested in the vendee until the 31st of March, when inspected, measured and paid for. Unless, of course, the weekly cuttings and removals left none on the land to be measured and settled for on March 31, 1907, in which event, the contract terminated upon the removal of all the timber and the title became vested in the buyer as inspected and paid for in one of the streams. So much of the contract as provides that the title to the timber shall revert to the vendor, does not refer to all of the timber so as to indicate that the execution of the con*435tract passed the title to the vendee. This clause as to reverting' back has reference only to what timber the vendor paid for on March 31st, when the title then became vested in him, but which he failed to remove from the land within six months after the 31st of March, 1907. Ex vi termini, on March 31st he was to pay for all remaining timber when the title was then to vest in him, then if he failed to remove it all off the land within six months that remaining on the land, upon the expiration of said six months, was to revert to the vendor.
The contract being an executory one, the plaintiff was not confined to a suit for the purchase price, but had the right to rescind upon the failure or refusal of the defendant to comply with his part of same and to sue for the breach, and the measure of damages wasi the difference in the value of the timber at the time of the breach and the price agreed to be paid for same. The value of same on the land would be a proper basis, for Avhile some of it was to be inspected in the streams, it was to be cut and carried there by the defendant, so to fix the value of so much thereof as should have been put in the streams would require a deduction of the cost of getting same there, and it would be as broad as long to base the market value, at the time of the breach, at what it was worth on the land.
As indicated by the oral charge of the trial court there was either a misconception of the contract or of the plaintiff’s replication. The complaint, as we understand it, is for a breach of the contract and not merely for the purchase price. Nor do we understand the replication as setting up a changed or modified contract .so as to render the defendant liable for bearing any of the burdens incident to the plaintiff’s getting *436out tbe timber. It, in effect, is but a joinder of issue of tbe defendant’s pleas of release or rescission by consent, by setting up1 a refusal or failure to wbicb tbe plaintiff did not consent and a gratuitous offer of tbe plaintiff to credit tbe defendant with any profits derived from getting out tbe logs, on tbe damages to wbicb tbe plaintiff was entitled. It does not seek to charge tbe defendant with any cost of getting tbe logs out by tbe plaintiff but merely changes tbe claim for damages to what tbe plaintiff sustained and was entitled to recover, less what they made in getting out tbe logs, wbicb they probably did and as to wbicb tbe defendant could not complain. Tbe first part of tbe oral charge excepted to by tbe defendant, as to tbe measure of damages, was error. It charged tbe defendant with tbe purchase price of the timber less any profits made by tbe plaintiff in logging the timber. If not otherwise bad, it treated tbe contract of sale as an executed one instead of an executory one.
Tbe trial court also erred in refusing charges 6 and 7, requested by tbe defendant. They assert tbe law, under tbe proper issues, and were not abstract as there was no evidence that tbe market value of tbe timber was less at tbe time of tbe breach than tbe contract price. There was evidence from wbicb tbe jury could infer that there was no loss on some of tbe logs, and tbe price of those sunken was not binding on tbe defendant; be bad nothing to do with them being in tbe bottom of tbe creek. It may be, that owing to tbe plaintiff’s special replication, tbe charges 6 and 7 were too favorable' to tbe plaintiff, but this did not justify their refusal. They were asked by tbe defendant, and if they were correct tbe fact that tbe defendant did not therein accept the plaintiff’s gratuitous offer of remittitur did not justify tbe refusal of same.
*437Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded.
Reversed and remanded.
Dówdell, O. J., and Simpson, Mayfield, Sayee, and Evans, J.J., concur.