(dissenting). Mr. Berg, not a party to this action, owned a farm on which he grew nursery stock consisting of various kinds of trees. He sold the nursery stock to the plaintiffs and the land to the defendants. Simultaneously the plaintiffs and defendants executed an agreement whereby the plaintiffs were to have from the date of the agreement, November 3, 1948, to October 30, 1949, to enter upon defendants’ land, cultivate the nursery stock, and remove it. In several places the agreement provided that plaintiffs’ rights to do these things “shall expire on the 30th day of October, 1949.” The plaintiffs had not removed the nursery stock by that date and when they attempted to do so shortly thereafter the defendants refused to permit it. Plaintiffs have brought suit for damages resulting from the refusal.
“As a general rule, rescission of a contract is not permitted for a casual, technical, or unimportant breach or failure of performance, but only for a breach so substantial as to tend to defeat the very object of the contract.” Gedanke v. Wisconsin Evaporated Milk Co. (1934), 215 Wis. 370, 375, 254 N. W. 660. It was repeatedly stated in the contract that October 30th ended the period in which the plaintiffs might take their property but that time was not specifically stated to be of the essence, and there is nothing in the complaint itself to show the degree of materiality which this date *344has to the object of the contract. It certainly does not appear to be of so great consequence that it will justify rescission and thus, on the face of the complaint, defeat plaintiffs’ action. It is for the defendants to raise that issue by answer.
Moreover, the plaintiffs bought the nursery stock from Berg. The defendants bought the land sans stock. For a failure to remove the stock by a designated time, which was not stated to be of the essence and which has not even been found to be material, the defendants propose to acquire without compensation that which they recognized was sold to the plaintiffs. It seems inequitable to sustain their position, and thus impose a forfeiture upon the plaintiffs, before the materiality of the date and the detriment to defendants of delay have been passed upon after submission of evidence.
Probably if the parties were agreed that the nursery stock is personalty the title to which is in the plaintiffs, the right of of plaintiffs to remove it, subject to payment of damages for delay in doing so, would not be seriously opposed. The defendants, however, contend that the stock is part of the realty, that title thereto came to them when they bought the land from Berg and that they could limit as they chose the privilege of plaintiffs to enter on their land and take away an element of their realty.' They rely on the so-called “Timber Cases” to support their position. In 1911, however, this state adopted the Uniform Sales Act, and with it the definitions and classifications of property now appearing in sec. 121.76, Stats. This declares:
“ 'Goods’ include all chattels personal other than things in action and money. The term includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.”
There can be no doubt that nursery stock is an industrial growing crop and, hence, personalty under the statute. There was a sale thereof by Berg to the plaintiffs, recognized *345by the defendants. I agree with the learned trial court that the “Timber Cases” do not apply to such trees since the enactment of the Uniform Sales Act. In addition, the defendants’ present contention that Berg’s deed of the land to them also conveyed title to the nursey stock is at variance with their admissions, on demurrer, of the allegations of the complaint and their contract with the plaintiffs which is incorporated in the complaint and which, among other provisions, recites:
“Whereas on this date the said Robert Berg and Ruth D. Berg, his wife, are selling to Donald M. Jens and Leland L. Jens, a partnership doing business as Jens Nursery & Landscape Company all of the nursery stock located upon said real estate premises formerly known as Berg’s Nursery; and
Whereas it is the contract and agreement by and between the said Albert A. Habeck and Rose J. Habeck, his wife, joint tenants, that the said Donald M. Jens and Leland L. Jens, a partnership doing business as Jens Nursery & Landscape Company in consideration of the sale of the said premises and in further consideration of the sale of the said nursery stock to the respective parties as aforesaid, that the said Donald M. Jens and Leland L. Jens, a partnership doing business as Jens Nursery & Landscape Company shall have free access to and upon the said real-estate premises for the purpose of removing all of the nursery stock upon the said premises
There is here no hint that defendants considered themselves the owners of the nursery stock under the doctrine of the “Timber Cases” or otherwise.
The conclusion should be that while the complaint shows the plaintiffs have not removed their property from defendants’ land within the time specified, the delay is not shown to have defeated their right to remove it thus forcing them to abandon it to the defendants. On the allegations of the complaint the right, prima facie, continued during the short time before they were ready to proceed. Whether the right is, in fact, gone or. whether they may still exercise it subject to *346allowance of damages for their delay should be determined by a trial. I consider a cause of action appears in the complaint and the learned trial court correctly overruled defendants’ demurrer.
I am authorized to state that Mr. Justice Fairchild and Mr. Justice Martin join in this dissent.