A contract to do work on the land of another is not within this section of the statute of frauds, even if the work consists in annexing something to the realty, as planting crops,1 erecting a barn,2 or digging a well,3 or drilling an oil-well.4 Nor does the statute include promises by a land-owner to pay for improvements erected on his own realty by some other person,5 or made by another on public land which the promisor afterwards acquires.6 A contract to remove earth from a tract of land is not within the statute if the primary object of the parties was the removal of the earth, as this is a contract for work and labor; but if a contract primarily for the earth itself, it is within the statute.7

294; 100 Am. Dec. 637; Huff v. Mc-Cauley, 53 Pa. St. 206; 91 Am. Dec. 203.

7 Dorris v. King (Tenn. Ch. App.), 54 S. W. 683; Kleeb v. Bard, 7 Wash. 41; 34 Pac. 138.

8 Helfrech, etc., Co. v. Honaker, (Ky.), 76 S. W. 342.

9 Smock v. Smock, 37 Mo. App. 56.

10Benner v. Bragg, 68 Ind. 338; Flynt v. Conrad, Phil. Law, 61 N. C. 190; 93 Am. Dec. 588; Youmans v. Caldwell, 4 O. S. 71; Baker v. Jordan, 3 O. S. 438; Backenstoss v. Stahler, 33 Pa. St. 251; 75 Am. Dec. 592. Contra, Fiske v. Soule, 87 Cal. 313; 25 Pac. 430; Chapman v. Veach, 32 Kan. 167; 4 Pac. 100; Mcllvaine v. Harris, 20 Mo. 457; 64 Am. Dec. 196.

63

11 Wimp v. Early, - Mo. App. -; 78 S. W. 343.

12 Kerr v. Hill, 27 W. Va. 576. (This decision follows Crews v. Pendleton, 1 Leigh (Va.) 297; 19 Am. Dec. 750, in holding that growing wheat passes with the land if no reservation is made. It goes beyond the latter case, it holding that even a reservation of it or contract concerning it is to be treated as dealing with realty.)

1 State v. Sanders, 52 S. C. 580; 30 S. E. 616.

2 Scales v. Wiley, 68 Vt. 39; 33 Atl. 771.

3 Plunkett v. Meredith, - Ark. -; 77 S. W. 600. (A contract for the permanent use of such well may be a contract for an easement.)

4 Haight v. Conners, 149 Pa. St. 297; 24 Atl. 302.