— The last request, made by the counsel for the defendants, that the Judge would instruct the jury, that the sale to the plaintiff was void, if ho falsely represented that Holmes Nash had given up the timber, was substantially complied with. The jury were instructed, that if it was a condition *476of the sale, as stated by White, Junior, that Holmes Nash had given up the timber, and such was not the fact, the plaintiff could not claim under the sale. If then the jury believed White, they must have found that Nash gave up the timber, and if he did so, there was no misrepresentation upon this point.
With regard to the sale, if the terms were settled, and the vendor accepted the promise of the plaintiff to pay the stipulated price, either to himself, or to others appointed by him to receive it, and actual payment was not made a condition of the sale, the property passed and vested in the plaintiff, at least as soon as he took actual possession. That possession, by the consent of the vendor expressed or implied, there being a sufficient consideration for the sale, was equivalent to a formal delivery. The logs thereby became subject to the plaintiff’s control, and the vendor parted with his interest in them, for the promise of the plaintiff to pay the price agreed, which might be enforced at law. The clause in the statute of frauds, upon which the counsel for the defendants rely, has reference to an executory contract. This was a contract of sale executed, as the jury have found, under the instructions of the Judge.
The cases, cited for the defendants, show that where a sale is made, depending upon a condition first to be performed, or at the time of receiving the chattels agreed to be sold, the sale does not become effectual, but upon proof of the performance of the condition. But no objection can be sustained upon this ground ; as the jury have negatived every condition insisted upon, or have found it fulfilled by the plaintiff.
The defendants’ counsel insist, that the jury were erroneously instructed, as to the true measure of damages. Had this been an action by the vendee against the vendor for not fulfilling the contract of sale, the cases referred to upon this point would have been applicable ; and it would have deserved very serious consideration, whether the rule prescribed could have been sustained. But this is an action of trespass, in which the plaintiff has made out his title to the property, upon a sale consummated, which was taken from his possession by the defendants without right, and where they must be regarded as wrongdoers in the same manner, as if neither of them had ever had any pretence of title *477thereto. What, in such cases, is the measure of damages ? The injured party is entitled by law to a full indemnity. That may not be in all cases the exchangeable value at the time, of that which is the subject matter of the trespass. A party has upon his grounds a quantity of standing timber, which he chooses to preserve, in the expectation that it may appreciate in value. It would hardly accord with the claims of justice, to oblige him to accept from a trespasser, in an action brought to vindicate his rights, the price of the timber, at such time, as he might please to take it from the true owner, although the latter might be able to prove at the trial, that its value had greatly increased. The owner of timber, prepared to be manufactured, or of any other kind of lumber or merchandise, has an undoubted right to exercise his own judgment, as to the most suitable time of sale, and if tortiously taken from him, unless he is permitted to recover, whatever he can prove it would have been worth to him, if retained, he is not indemnified, and the trespasser may be a gainer at his expense. In the case before us, the jury were instructed, that they might allow the plaintiff the profit, he would have made by sawing the timber, and by its appreciation in price. He was certainly best entitled to this profit; and it would be altogether inequitable to leave it in the hands of trespassers. They are bound, upon the principles of common justice, to put him in as good a situation, as if they had not interfered.
In our opinion, the latitude given to the jury, on the subject of damages, in the instructions of the Judge, did not go beyond what the law of the case required. A general averment of damage in the plaintiff’s declaration, was sufficient for his purpose, under which it was competent for him to prove the loss he had sustained, by the trespass alleged, not exceeding the amount set forth and claimed.