It would seem, on principle, that as long as crops are growing or even standing matured in the earth, they are affixed to the realty; and that an agreement for an immediate transfer of title to them while thus growing or standing is an agreement for the sale of an interest of land. Doubtless the earth may be used as a storehouse for articles of any kind, but to apply this reasoning, as has been done to the case of trees in a nursery,34 is pushing it beyond the point where it is justified by the facts. In truth, the nurseryman has attached his trees to the soil and the fact that he means to detach them later does not diminish the bond existing in the meantime. On the other hand, it is clear, on principle, that a contract to sell a particular crop after it has been gathered is a contract for the sale of goods, even though at the time the contract was made the crop was still growing (unless under a local American rule it was a contract for work and labor),35 for the contract is not to sell the standing crop but to sell the harvested crop. There can be no doubt that the law supports this proposition,36 but it does not support nial roots seems properly treated as fructus naturoles,41 but courts which treat sales of standing trees to be removed immediately as contracts for the sale of personal property, as indicated in the following section, would naturally reach the same result in dealing with a contract for the sale of hay.42
34 Miller v. Baker, 1 Met. 27. The fact, however, that such trees had to be dug and packed by the seller does not make the contract one of work and labor and thus withdraw it altogether from the Statute of Frauds. Jones v. Pettigraw, 24 3. Dak. 432, 127 N. W. 638. 35 As it was held, e.g., in Eichelberger v. M'CauIey, 6 H. ft J. 213, 9 Am. Dec. 514 (now overruled by Willard v. Hig-don, 123 Md. 447, 91 Atl. 577. Ann. Cas. 1916 C. 339; Stem v. Crawford (Md.), 105 Atl. 780); Talmadge v. Lane, 17 N. Y. Misc. 731, 41 N. Y. 8. 413.
36 Evana v. Roberts, 5 B. & C. 829; Watte v. Friend, 10 B. ft C. 446; Bowthe criticism as to trees in a nursery. The tendency of the decisions has been to treat crops as personal property in some cases where strict reasoning might lead to a contrary conclusion. The vegetable products of the earth have been classified as fructus naturales and fructus industriales. In the former class are included everything which grows spontaneously, or without annual cultivation, such as trees or grass. In the second class are included crops which are the subject of yearly planting and cultivation. By a rule arbitrary, but not inconvenient, fructus industriales are treated in every case as goods, whether matured or not at the time when by the terms of the bargain they were to be sold.37 The definition of goods in the Uniform Sales Act clearly involves the adoption of this rule. Some difficult questions have arisen in regard to the line dividing fructus naturales and fructus industriales. Thus, in the case of fruit, though the crop is picked annually, it is not the result of annual planting and not always of regular cultivation, but because of the annual character of the crop, together with the labor required to produce it, it has been held that a crop of peaches or other orchard fruit is to be classed as fructus indus-triales.38 The same has been held in regard to hops,39 and a crop of timothy seed.40 A crop of grass growing from perenman v. Coon, 8 Ind. 68; Wainecott v. Kellogg, 84 Mo. App. 621; Pitkin v. Noyes, 48 N. H. 204, 97 Am. Deo. 615, 2 Am. Rep. 218.
37Marshall v. Green, 1 C. P. D. 36; Stuttgart Rice Mill Co. v. Renischl 123 Ark. 361, 184 S. W. 836; Marshal, v. Ferguson, 23 Cal. 65; Davis v. Me-Farlane, 37 Cal. 634, 99 Am. Dec. 340; Wetopsky v. New Haven Gag light Co., 88 Conn. 1, 90 Atl. 30; Bull v. Griswold, 19 111. 631; Sherry v. Picken, 10 Ind. 375; Moreland v. Myall, 14 Bush, 474; Bryant v. Crosby, 40 Me. 9; Punier v. Piercy, 40 Md. 212, 17 Am. Rep. 591; Willard v. Higdon, 123 Md. 447, 91 Ad. 577, Ann. Cas. 1916 C. 339; Whitmarah v. Walker, 1 Met. 313; Smock v. Smock, 37 Mo. App. 56; Holt v. Holt, 67 Mo. App. 272; Swafford v. Spratt, 93 Mo. App. 631, 67 S. W. 701; Wimp v. Early, 104 Mo. App. 85; Newcomb v. Ramer, 2 Johns. 421, note; Webster v. Zielly, 62 Barb. 482; Walton v. Jordan, 65 N. C. 170; Carson v. Browder, 2 Les, 701; Crosby v. De Bord (Tex. Civ. App.), 165 S. W. 647; Kerr v. Hill, 27 W. Va. 576. Cf. Powell v. Rich, 41 111. 466; Powers v. Clarkson, 17 Kan. 218.
38 Purner v. Piercy, 40 Md. 212, 17 Am. Rep. 591; Vulioevich v. Skinner,
77 Cal. 239, 19 Pac. 424; Smock v. Smock, 37 Mo. App. 56. But see Rod-well v. Phillips, 9 M. ft W. 601.
39Rodwell v. Phillips, 9 M. & W. 601,503; Frank v. Harrington, 36 Barb. 415.
40Wimp v. Early, 104 Mo. App. 86,
78 S. W. 343.