
    GEORGE W. SARSON, APPELLANT, v. WILLIAM MUELLER, RESPONDENT.
    Argued May 23, 1928
    Decided October 15, 1928.
    Ror the appellant, Joseph M. Roseberry & Son.
    
    Ror the respondent, Sylvester 0. Smith, Jr.
    
   The opinion of the court was delivered by

Lloyd, J.

This case having been before us on two previous appeals, it will only be necessary to refer to the earlier opinions for recital of the facts. The present appeal is by the plaintiff from a verdict directed in favor of the defendant. The facts proven on the third trial were substantially the same as those proven in the two earlier trials. A reading of the opinions in this court, as reported in 102 N. J. L. 206, and 104 Id. 140, will disclose that on the first appeal it was held that trover and conversion will not lie for the standing timber, growing trees not being personal property, but part of the realty. In the second review of a trial on a new action brought for breach of contract we held that recovery could be had for the timber that had been cut. This was the law of the case, and when the trial came on it was recognized by the learned trial judge as controlling, and he sustained objection only to the proofs respecting the standing timber, leaving the plaintiff to his proofs as to the timber already cut. At the conclusion of the defendant’s proofs, however, a motion was made for direction of a verdict in favor of the defendant, and the court, apparently agreeing with the defendant’s counsel that the plaintiff had failed to prove any breach of contract, granted the motion.

Under our earlier decisions the court properly excluded evidence as to the value of the timber that remained standing, but we think the plaintiff’s evidence was sufficient to entitle him to go to the jury as to the portion already cut, access to which was denied him by the defendant, and that the direction of a verdict cannot be justified.

The judgment is reversed and a venire de novo awarded.

For affirmance — Kalisch, Black, Yak Buskikk, Hetfield, Dear, JJ. 5.

For reversal — The Chief Justice, Trenchard, Parker, Minturn, Katzenbach, Campbell, Lloyd, White, Mc-Glennon, Kays, JJ. 10.  