This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Per Coleridge, J., at page 38 of the Law Report.
§ 254 c. The case is further noticeable, as deciding that the owner of the produce of land can, if he wishes, sell it as it stands, by an oral sale, as so much goods, wares, and merchandise. While it has always been admitted that no interest in land was conveyed where the parties intended that the title in the crop should not pass till it had been severed from the realty,1 yet there seemed to be a difficulty in those cases where the crops were sold standing, and from the language of some of the decisions it might be inferred that parties cannot, under such circumstances, pass the title presently by a parol contract. But when the fact appears that the parties have dealt with the crops as so much produce, or goods now stored and ready for sale, it seems clear that the accidental support given by the soil cannot of itself be an objection to the accomplishment of their sale in the ordinary manner of sales of goods. The court, therefore, found no difficulty in holding that the trees were sold as they stood, and as so much lumber. They gave effect to the intention of the parties as gathered from the facts of the case, which manifestly was to sell and buy goods, wares, and merchandise, and, finding the seventeenth section of the statute complied with, upheld and enforced the contract, and the transfer of title under it.
1 Boyce w. Washburn, 4 Hun (N. Y.) 792; White v. Foster, 102 Mass. 375.
§ 255. In the case of Whitmarsh v. Walker, in Massachusetts, the defendant verbally agreed to sell to the plaintiff at a stipulated price two thousand mulberry trees then growing in the defendant's close. The plaintiff paid a small sum at the time, and was to pay the remainder on the delivery of the trees, which was to be on demand. The defendant refused to carry out the agreement, and it was insisted that it was not binding, being for the sale of an interest in land within the meaning of the statute. Wilde, J., delivering the opinion of the court, remarked, that the contract of sale was not to be considered as consummated at the time of the agreement; the delivery was to be at a future day, and the defendant was not bound to deliver unless the plaintiff was ready and willing to pay; that no property vested in the plaintiff by the agreement. He adds: "According to the true construction of the contract, as we understand it, the defendant undertook to sell the trees at a stipulated price, to sever them from the soil, or to permit the plaintiff to sever them, and to deliver them to him on demand; he at the same time paying the defendant the residue of the price. And it is immaterial whether the severance was to be made by the plaintiff or by the defendant. For a license for the plaintiff to enter and remove the trees would pass no interest in the land, and would without writing be valid notwithstanding the Statute of Frauds." In this case the contract was made enforceable by part payment of the price of the trees, and the plaintiff had damages for the defendant's refusal to deliver as he had agreed.1 In the next case, Claflin v. Carpenter, the opinion of Treby, C. J., that growing timber might be sold without writing, is cited as an authority and the leading one on this subject, and fully adopted, and the criticism of Hullock, B., upon it, in Scorell v. Boxall, distinctly disapproved. But while disregarding to this extent the technical nature of the crop as a part of the realty, the Massachusetts courts still hold that the oral contract, if it is intended to pass a present title to the standing crop, is ex proprio vigore for an interest in land,2 thus differing in an important feature from Marshall v. Green. It is also held that before the severance the owner may revoke the license to enter and sever under the contract, and that the purchaser, having no title in what remains un-severed, will have no right to enter and sever it.3 His only remedy will be for the breach of the contract, as in Whit-marsh v. Walker, supra.
§ 255 a. The doctrine of Marshall v. Green had been previously declared and acted upon in Maine,4 Kentucky,5 Maryland,6 and perhaps Connecticut and Pennsylvania.7
§ 256. The rule based upon the nature of the crop sold, whether fructus naturales or fructus industriales, under which an oral sale of the latter is held sufficient, but of the former insufficient, to pass the title before severance, has been distinctly approved in New Hampshire,1 New York,2 New Jersey,8 Indiana,4 California,5 Tennessee,6 Missouri,7 and Ohio.8
1 Whitmarsh v. Walker, 1 Met. 313.
2 Claflin v. Carpenter, 4 Met. 580; Giles v. Simonds, 15 Gray 441. And see Knox v. Haralson, 2 Tenn. Ch. 232.
3 Poor v. Oakman, 104 Mass. 309; Drake v. Wells, 11 Allen 141; Giles v. Simonds, 15 Gray 441.
4 Cutler v. Pope, 13 Me. 377. See Safford v. Annis, 7 Greenl. 168; Erskine v. Pluramer, 7 Greenl. 447.
5 Cain v. McGuire, 13 B. Mon. 340; Byassee v. Reese, 4 Met. 372.
6 Smith v. Bryan, 5 Md. 151, in which the Court of Appeals said: "The principle to be gathered from a majority of the cases seems to be this, that where timber or other produce of the land, or any other thing annexed to the freehold, is specifically sold, whether it is to be severed from the soil by the vendor, or to be taken by the vendee, under a special license to enter for that purpose, it is still, in the contemplation of the parties, evidently and substantially a sale of goods only."
7 See Bostwick v. Leach, 3 Day 476; McClintock's Appeal, 71 Pa. St. 365. See also Heflin v. Bingham, 56 Ala. 566; Harris v. Powers, 57 Ala 139; Kerr v. Hill, 27 W. Va. 605.
§ 257. The Supreme Court of Vermont asserted the earlier English doctrine, after much consideration, in the following case. The plaintiff had purchased by verbal contract, for a gross sum, all the timber standing on a particular part of the land of one Story, with liberty, for an indefinite time, to enter and take it off. The land passed from Story, through a long series of deeds, to the defendant, whose deed from his immediate grantor contained no reservation as to the trees in question. The defendant, more than twenty years after the contract of Story with the plaintiff, and after the plaintiff had cut and removed some of the trees, cut and removed the remainder, and for this the action was brought, i. e. "trespass for cutting down growing trees of the plaintiff." It was held that it would not lie. Bennett, J., who delivered the opinion of the court, quotes the English cases setting up the distinction between the prima vestura and fructus industriales as decisive of the question whether the statute applies, and assents to them. But he remarks, at the close of his judgment, that in Scorell v. Boxall (the authority principally relied on) "the action was substantially based on title, and the title wholly dependent on the verbal contract, which was inoperative to convey a right."1 The case before the court was undoubtedly decided correctly, the action being based on title, and the trespass being complained of as committed in respect of growing trees of the plaintiff. In a later case in that State the court, while recognizing the correctness of the decision last cited, say, "We are not supposed to give that opinion the force of authority beyond the very point of judgment," and at the same time express a decided disposition to sanction the broader rule, that either fructus naturales or fructus industriale8 could be sold in the ground as goods, wares, and merchandise, if such were the nature of the contract and the intention of the parties.2