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 Warwick v. Bruce, 2 Maule & S. 208.
§ 241. In this case just quoted (the great importance of which seems to justify the extensive quotations which have been made from it) frequent allusion is made to two other cases. The first is Crosby v. Wadsworth, which it is deemed convenient to examine at a later page.1 The second is Parker v. Staniland, which, for the reason that it makes one of the series of cases necessary to be studied together upon this subject, rather than because it gives any especial light upon the rule which was laid down at the outset,2 should here be explained. It was upon a verbal contract for the sale of potatoes then in the ground, which the defendant was to get himself and immediately. The defendant had partially gathered them, when the residue were spoiled by the frost, and he refused to take or pay for them, and for the price of the remainder the action was brought. A rule to set aside a verdict for the plaintiff was discharged. Lord Ellenborough, C. J., said: "It does not follow that because the potatoes were not at the time of the contract in the shape of personal chattels, as not being severed from the land, so that larceny might be committed of them, therefore the contract for the purchase of them passed an interest in the land, within the fourth section of the Statute of Frauds. The contract here was confined to the sale of the potatoes, and nothing else was in the contemplation of the parties. It is probable that in the course of nature the vegetation was at an end; but be that as it may, they were to be taken by the defendant immediately, and it was quite accidental if they derived any farther advantage from being in the land. . . . The lessee primoe vesturce may maintain trespass qu. cl. fr., or ejectment for injuries to his possessory right: but this defendant could not have maintained either; for he had no right to the possession of the close; he had only an easement, a right to come upon the land, for the purpose of taking up and carrying away the potatoes; but that gave him no interest in the soil." Grose and Le Blanc, JJ., concurred, and also Bayley, J., who observed that "here the land was considered as a mere warehouse for the potatoes till the defendant could remove them."1
1 Evans v. Roberts 5 Barn. & C. 829.
1 Post, § 244. 2 Ante, § 237.
§ 242. The next case, and one to which especial attention should be paid, for its bearing upon a particular branch of this question, is that of Smith v. Surman, decided in the King's Bench in 1829. The defendant verbally agreed to buy of the plaintiff a large quantity of timber, which, at the time, the plaintiff was having cut down, most of it being then actually standing; the price was valued per foot, and no time was fixed for payment, and the defendant was to take and carry it away. A rule to show cause against setting aside a verdict obtained below for the plaintiff was made absolute, on the ground that, as a sale of goods, wares, and merchandise, there was no memorandum, or acceptance and receipt, as required by the seventeenth section. The case, however, presented the question whether the contract was for an interest in lands, and the judges agreed that it was not. Bayley, J., said: "The contract was not for the growing trees, but for the timber at so much a foot; that is, the produce of the trees when they should be cut down and severed from the freehold." Littledale, J., said the fourth section related to contracts "which give the vendee a right to the use of the land for a specific period. If in this case the contract had been for the sale of the trees, with a specific liberty to the vendee to enter the land to cut them, I think it would not have given him an interest in the land within the meaning of the statute. The object of a party who sells timber is, not to give the vendee any interest in his land, but to pass to him an interest in the trees, when they become goods and chattels. Here the vendor was to cut the trees himself. His intention clearly was, not to give the vendee any property in the trees until they were cut, and ceased to be part of the freehold."2
1 Parker v. Staniland, 11 East 362.
2 Smith v. Surman, 9 Barn. & C. 561. See Hanson v. Roter, 64 Wisc. 622
§ 243. Next, we must briefly notice the case of Sainsbury v. Matthews, decided in the Court of Exchequer in 1838, the facts of which were that the defendant, in the month of June, agreed to sell to the plaintiff the potatoes then growing on a certain quantity of land of the defendant, at two shillings per sack, the plaintiff to have them at digging time (October), and to find diggers. It was held that here was not a contract for an interest in land, within the meaning of the fourth section. It was argued by the defendant that the potatoes were not in such a shape at the time of the contract that they could be transferred as chattels; they were to be taken up by the vendee when ripe, and he must necessarily have the benefit of the land for the three intervening months. But the judges thought otherwise. Lord Abinger, C. B., said: "I think this was not a contract giving an. interest in the land; it is only a contract to sell potatoes at so much a sack on a future day, to be taken up at the expense of the vendee. He must give notice to the defendant for that purpose, and cannot come upon the land when he pleases." Parke, B., said: "This is a contract for the sale of goods and chattels at a future day, the produce of certain land, and to be taken away at a certain time. It gives no right to the land: if a tempest had destroyed the crop in the mean time, and there had been none to deliver, the loss would clearly have fallen upon the defendant."1
§ 244. The American decisions, which, upon the whole, are quite harmonious with the general tendency of those we have been quoting, will be referred to hereafter.2 Meanwhile, one more case, and that an early and most important one, requires to be examined. This is Crosby v. Wadsworth, decided in the King's Bench in 1805. The plaintiff verbally agreed to purchase from the defendant a standing crop of mowing grass then growing in the defendant's close, the plaintiff to mow the grass and make it into hay, but the time when the mowing was to begin was not fixed. Before the plaintiff had done any act under this agreement, the defendant notified him that he should not have the grass, and sold it to another man. Plaintiff afterwards made tender of the agreed price of the grass, which was refused. Defendant locked plaintiff out of the close, and the grass was finally cut and carried away by the second purchaser. The action was trespass, that the defendant, "with force and arms, broke and entered a certain close whereof the plaintiff was lawfully possessed, and trod down the plaintiff's grass and hay, and cut down the plaintiff's grass then growing in the close, and took and carried away," etc. Lord Ellenborough, C. J., said: "As the plaintiff appears to have been entitled (if entitled at all under the agreement stated) to the exclusive enjoyment of the crop growing on the land during the proper period of its full growth, and until it was cut and carried away, he might in respect of such exclusive right maintain trespass against any persons doing the acts complained of in violation thereof. . . . This brings us to the question, whether the plaintiff had under the agreement and circumstances stated any legal title to this growing crop at the time when the injury complained of was done; or whether his supposed title thereto was not wholly void, as being created by parol, under any and which of the provisions in the Statute of Frauds, or on any and what other account? " He then observes that the crop was not goods, wares, and merchandise, being an unsevered portion of the freehold, and also that for further reasons the contract did not amount to a lease.1 He then proceeds to say, "I think the agreement stated, conferring, as it professes to do, an exclusive right to the vesture of the land during a limited time and for given purposes, is a contract or sale of an interest in, or at least, an interest concerning lands." He adds, that although the statute, not making such a contract void,2 but only prohibiting the bringing of an action for the breach of it, would not bar a mere general action of trespass (such as the present) for injury to the plaintiff's possession, yet, being executory and not actionable, it might be discharged before anything was done under it which could amount to a part execution. "On this latter ground, therefore," he says, "namely, that this parol executory contract, supposing it to have been otherwise valid, was competently discharged by parol, we feel ourselves obliged to say that the plaintiff is not entitled to recover." 1 It is very material to note his remark upon the case of Poulter v. Killingbeck, decided in the Common Pleas in 1799. There the plaintiff had let to the defendant land, without rent, from which he was to take two successive crops, and to render to the plaintiff a moiety of the crops in lieu of rent; and afterwards the value of the crops was ascertained by appraisement, and action was brought in indebitatus assumpsit for moieties of crops sold, and for money had and received, to which it was objected that the contract was for an interest in land; but Buller, J., said: "This agreement does not relate to any interest in the land, which remains altogether unaltered by the arrangement concerning the crops."2 Of this case Lord Ellenborough says (in the decision from which we have been quoting): " The contract, if it had originally concerned an interest in land, after the agreed substitution of pecuniary value for specific produce no longer did so; it was originally an agreement to render what should have become a chattel, that is, part of a severed crop in that shape, in lieu of rent, and by a subsequent agreement it was changed to money."