Defendants appeal from a judgment in favor of plaintiffs in an action to recover the value of timber alleged to have been removed from plaintiffs’ property under a timber sales agreement.

The stipulated facts are:

Yes. The rule is established in California that where there is a contract for the sale of standing trees to be removed within a specified time, title passes to the vendee to only those trees which he cuts and removes within the designated period. Title to the remaining trees is in the vendor.

The rule is thus stated in Mallett v. Doherty, 180 Cal. 225, 229 [ 180 P. 531 , 15 A.L.R. 19 ] : “The rule of construction as to contracts for the sale of standing trees to be removed within a specified time is thus stated in 28 Am. & Eng. Ency. of Law, p. 541: 1 Contracts for the sale of standing trees to be removed within a specified time have generally been construed by the courts as sales of only so many trees as the vendee might cut and remove within the time designated, the balance remaining the property of the vendor. ’ (See, also, 25 Cyc. 1549; 17 R.C.L. 1084, and 55 L.R.A. 526 .)”

Applying the foregoing rule to the facts of the present case, it was stipulated that by the contract of February 7, 1946, between defendants and S. C. Giles and Company, Giles purchased 7% million board feet of timber standing on defendants’ land; that Giles agreed to cut at least 1% million feet of timber a year over a period of five years, but that Giles, in a period of six years, had cut less than 4 million feet of timber from the land; and that the time within which Giles could cut the total amount of timber had elapsed. The title to the balance of the 7% million feet of timber which defendants had agreed to sell to Giles therefore remained in defendants. However, the deed from defendants to plaintiffs conveyed, without reservation, the land involved and the timber thereon, excepting only the timber previously sold to Giles. Plaintiffs therefore acquired title to all the timber except that actually removed by Giles. As a result, since title to the timber removed by defendants was in plaintiffs, they are entitled to recover, under their contract with defendants, at the rate of $2.50 per thousand feet of timber removed by defendants from the above-described property.

The judgment is affirmed.

Gibson, C. J., Traynor, J., Schauer, J., Spence, J., Peters, J., and White, J., concurred.

Appellants’ petition for a rehearing was denied December 31,1959.