delivered the opinion of the Court—Terry, C. J., concurring.

This controversy, which has been going on a long time, and been heretofore before this Court, grew out of a contract in these words :

“ Having this day sold to Messrs. Dabovich & Co. three shares and one-fifth of one share of the pears standing on the trees of the orchard of San Pablo, which orchard is divided into eight shares, I hereby guarantee to said Nicholas Dabovich & Co., that the said three shares and one-fifth of one share of said pears will be at their disposal on the trees, free from trouble and annoyance from other parties to them.

“ (Signed,) Jos. Emeric.

“June 14th, 1856.”

When the case was before this Court (January T., 1858) this contract was construed. They say, “ from the very nature of the first contract of ^ale, the delivery took place as soon as the sale was made. So far as the sale was concerned, they became the owners of the fruit upon the trees, and could only maintain an action against the defendant in case he converted the property or interfered with them in picking it. As to the guarantee, its effect was simply that the pears should be on the trees at the disposal of the plaintiffs, and that they should not be disturbed in their right to gather them by third persons. To recover on this contract, it was necessary to allege and *179 prove either that the fruit was not on the trees, or that the plaintiffs had been interfered with by third parties gathering it. There was no necessity for any demand upon the defendant unless for the purpose of enabling him to comply with the terms of his guarantee.”

This opinion was given on appeal from the Superior Court of San Francisco after the first trial, which resulted in verdict and judgment for the plaintiffs.

On the remanding of the case, the plaintiffs amended their complaint. This pleading set out the contract in its words, and averred for a breach of it, that the plaintiffs went to the orchard to gather the pears from the trees on which they were, and that the plaintiffs were then and there troubled and annoyed, and were by force, and arms, and threats of violence, ejected from the orchard, and hindered and prevented from gathering the pears; that the defendant was duly notified of this hindrance ; that the defendant utterly refused and neglected to deliver the pears to the plaintiffs, or place the same at the disposal of the plaintiffs, according to the terms of the contract, free from annoyance or trouble; and avers damages to the amount of $3,000. Issues were joined on this complaint, and the case was tried by jury under the directions of the Court. Sundry instructions were given and refused. These form the main subject of review here.

It has been seen that the complaint does not aver any causes of special damages. Only such damages, then, as were the natural and necessary consequence of the breach of the agreement can be recovered. The whole guarantee, as we understand it, amounts to this : that the defendant owned a certain portion of the pears growing or hanging on the trees of the orchard ; this proportion was sold to plaintiffs, with a right to go and gather them, and the defendant warranted that the plaintiffs should not be disturbed or hindered in getting them. The plaintiffs wanted no trouble, difficulty or law suits about the matter, and the defendant insured them against this. An opposition by force, or the appearance of it, authorized the plaintiffs to desist from •going on the premises, or prosecuting their errand in gathering or attempting to gather the fruit; and this opposition gave the plaintiffs a right of action. The measure of damages was the injury done, which was the loss of the pears. The value of these was the standard of *180 recovery. If there was no ascertained fixed value of the pears growing or on the trees at the orchard, the market value at San Francisco, less the cost of gathering and carriage, would furnish the rule of value.

The plaintiffs were not bound to take less than all of what they purchased. The defendant had no right to change the terms of the contract ; the plaintiffs had a right to the contract as they made it. Even in cases of the sales of several articles by one contract for a sum in gross, the vendee is not bound to take a portion, but may rescind the contract if all are not delivered. This was in effect a sale of all the defendant’s share of this fruit, and guarantee of uninterrupted access to all, and liberty to take all. The plaintiffs were not bound to take a part, when they were hindered from getting the rest. We cannot apportion the contract in this way; for the main inducement to the contract may have been to obtain the whole quantity of the fruit contracted for.

The contract did not merely provide against interruption from the parties having an interest in the orchard, but the guarantee is general, including interruption from every quarter.

Inasmuch as no claim was made in the complaint for loss of time, wages, etc., no recovery could be had on this account, and the Court erred in instructing the jury in this respect.

We think there was no error in the first instruction. Considering this contract to be in effect an agreement for the delivery of these pears, or, what amounts substantially to the same thing, a sale of them with a guarantee of peaceable and uninterrupted possession, the plaintiffs having paid the price in cash, were entitled to recover as the measure of damages for a breach of the agreement the highest market price of the pears on the trees, from the time of the delivery to the time of trial, if suit were not unreasonably delayed. Sedg. on Damages, page 264.

The principles upon which this protracted case may be finally disposed of have been given. To prevent misapprehension we repeat them.

If other persons were in possession of the orchard when plaintiffs went there to gather the fruit, and if those persons forbade the plaintiffs, or their agents and servants, from going in and gathering the fruit purchased, and if the plaintiffs could not have done so without risk of *181 personal collision or violence, then the guarantee was broken; and though the plaintiffs might have been permitted to gather a portion of the fruit bought, but not all, they had a right to come away and hold the defendant responsible on the guarantee.

The measure of damages in that event would be the highest market price of the fruit on the trees at the orchard, if there was any market value for it there, and as it was ; if not, then if the plaintiffs were prepared to gather it and carry it to the market, the market value there, less the cost of gathering and carriage, would be the criterion of recovery.

But under the complaint the jury could not give compensation for any loss of time, remuneration for wages paid, etc., as there is no allegation in the complaint as to these matters.

The judgment is reversed and case remanded.