The section does not extend to shares in a mining company conducted on the cost-book principle (q); or to shares in a railway company (r); or to shares in a water company (s). Shares in companies governed by the Company Clauses Consolidation Act, 1845 (t), or by the Companies (Consolidation) Act, 1908 (u), are expressly declared by statute to be personalty.


(h) Pawle v. Gunn, (1838) 4 Bang. N. C. 445; 7 E. J. N. S. C. P. 206.

(i) Brewer v. Broadwood, (1882) 22 Ch. D. 105; 52 L. J. Ch. 136; Brickles v. Snell, 1916, 2 A. C. 599, 609.

(k) Kelly v. Webster, (1852) 12 C. B. 283; 21 L. J. C. P. 163.

(i) Driver v. Broad, 1893, 1 Q. B. 744; 63 L. J. Q. B. 12. Of. Deddington Steamship Co. v. I. R. Commissioners, 1911, 1 K. B. 1078; 1911, 2 K. B. 1001.

(m) Forster v. Hale, (1800) 5 Ves. 309; Essex v. E., (1855) 20 Beav. 449; Re Be Nicols, 1900, 2 Ch. 410, 416, 417; 69 L. J. Ch. 680; Bale v. Hamilton, (1847) 5 Hare, 369; 2 Ph. 266; 16 L. J. Oh. 397.

(n) Caddick v. Skidmore, (1858) 2 D. & J. 52; 27 L. J. Ch. 153.

(o) Gray v. Smith, (1890) 43 Ch. D. 208; 59 L. J. Ch. 145.

(p) See Watson v. Spratley, (1854) 10 Ex. 222; 24 L. J. Ex. 53; Re Bourne, 1906, 2 Ch. at p. 434.

(q) Watson v. Spratley, sup.; see, too, Powell v. Jessopp, (1856) 18 C. B. 336; 25 L. J. C. P. 199; Walker v. Bartlett, (1856) 18 C. B. 845; 25 L. J. C. P. 263; and Hayter v. Tucker, (1857) 4 K. & J. 243.

Questions frequently arise as to the necessity for a written agreement for the sale of growing crops. The point to be determined in such cases is, whether the interest contracted for is an interest in land, - in which case a written agreement is necessary; - or whether the contract is merely for the sale of goods; in which case, however, under s. 4 of the Sale of Goods Act, 1893, where the price is 10l. or over, the contract will be unenforceable by action, unless the buyer accepts, and actually receives part of the goods so sold, or gives something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract is made and signed by the party to be charged or his agent.

Sale of growing crops.

The term "goods," as used in the Sale of Goods Act, 1893, is defined in s. 612 (1) of that Act, and includes (inter alia) "emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before 6ale or under the contract of sale." In this clause, the words "which are agreed to be severed," etc, appear to govern only the word " things " (x) and if such is the case, emblements and industrial growing crops would 6eem to be goods, even though it is not part of the contract that they are to be severed. The words "before sale," in the above definition, mean, it is thought, before the property in the same, passes. "It seems plain upon principle," says Lord Blackburn (y), "that an agreement to transfer the property in something that is attached to the soil at the time of the agreement, but which is to be severed and converted into goods before the property is to be transferred, is an agreement for the sale of goods ... It is an executory agreement for the sale of goods not existing in that capacity at the time of the contract. And when the agreement is that the property is to be transferred before the thing is severed, it seems clear that it is not a contract for the sale of goods ... If this be the principle, the subject of inquiry in each case is when do the parties intend that the property is to pass."


(r) Bradley v. Holdsworth, (1838) 3 M. & W. 422; 7 L. J. N. S. Ex. 153; Duncuft v. Albrecht, (1841) 12 Si. 189; Tempest v. Kilner, (1846) 3 C. B. 249.

(s) Bligh v. Brent, (1836) 2 Y. & C. 268; 6 L. J. N. S. Ex. Eq.58.

(t) S. 7. (u)S. 22 (1); Companies Act, 1929, s. 62.

(x) See the editor's note in Benjamin on Sales, 6th ed. p. 198.

(y) Blackburn on Sales, 1st ed. 9 - 11; 3rd ed. 5, 6.

A distinction appears to be drawn between fructus naturales and fructus industriales, the latter phrase referring to crops produced by the labour of man and which ordinarily yield a present annual profit (z). In the case of fructus naturales, it seems clear that if under a contract for purchase of the same the purchaser is to have the right to enter and sever them, the contract relates to an interest in land and a written memorandum is required (a).

Natural crops.

Thus, if the agreement be for sale of the crop after the seller shall have reduced it to a chattel by severance from the freehold, as where standing timber is to be felled by the vendor, s. 40 of the L. P. Act, 1925 (b), does not seem to apply.(c); and the same distinction, it is conceived, exists in agreements for the sale of gravel (d), stone, or other minerals; nor does the section seem to affect sales of crops which would go as emblements (e); such as hops (f), wheat, potatoes, turnips (g), etc. It does not appear to be material in such cases whether the crop at the time of sale is mature or otherwise, or whether it is to be removed by the buyer or seller, or to be paid for by the quantity or by the acre (h). Even in the case of grass, if the vendor retain possession of the land, and the right of turning on his own cattle, and the purchaser has no right of severance, but only to feed it off along with the vendor, the agreement is merely for agistment, and is not within the section (i); nor does the section apply to an agreement in respect of damage to the surface (k).

Sold as goods.

(z) Blackburn on Sales, 1st ed. 9 - 11.

(a) Crosby v. Wadsworth, (1805) 6 East, 602; Carrington v. Roots, (1837) 2 M. & W. 248; 6 L. J. N. S. Ex. 95; Scorell v. Boxall, (1827)

1 Y. & J. 396; Rodwell v. Phillips, (1842) 9 M. & W. 501; 11 L. J. Ex. 217; Jones v. Flint, (1839) 10 A. & E. 753; 9 L. J. N. S. Q. B. 252.

(b) Re-enacting s. 4 of the Statute of Frauds.

(c) Smith v. Surman, (1829) 9 B. & C. 561; 7 L. J. (O. S.) K. B. 296; and see Lord Falmouth v. Thomas, (1832) 1 Or. & M. at p. 105;

2 L. J. N. S. Ex. 57; and Marshall v. Green, (1875) 1 C. P. D. 35; 45 L. J. C. P. 153.

(d) See Coulton v. Ambler, (1844) 13 M. & W. 403; 14 L. J. Ex. 10.

(e) Sug. 14th ed. 125; but see Waddington v. Bristow, (1801) 2 B. & P. 452.

(f) Evans v. Roberts, (1826) 5 B. & C. 829; 4 L. J. (O. S.) K. B. 313; see judgment; and Sug. 14th ed. 126.


A parol agreement, for the sale of growing crops, which would otherwise be void under the section, may be good as between outgoing and incoming tenants (l); but a sale of the growing crops by the lessor to the incoming tenant seems to require a written contract (m). Although an agreement relating to a growing crop may be unenforceable under the section, the seller (unless perhaps the parties be landlord and tenant) can recover the value of the crop if taken or received by the purchaser (n); but he cannot recover on the terms of the agreement, but only on a quantum valebat (o).

Parol agreement good between tenants; but not as between lessor and incoming tenant.

Vendor's remedy if purchaser take the crop.

A sale of tenant's fixtures by the tenant to the landlord is not within the section, though sold while attached to the freehold (p); such a transaction being merely a renunciation of the right of removal.

Tenant's fixtures.

(g) Dunne v. Ferguson, (1832) Hay. 540.

(h) Parker v. Staniland, (1809) 11 Ea. 362; Warwick v. Bruce, (1813) 2 M. & S. 205; Evans v. Roberts, sup.; Hallen v. Runder, (1834) 1 C. M. & R. 266, 275; Sainsbury v. Matthews, (1838) 4 M. & W. 343; 8 L. J. N. S. Ex. 1; Dunne v. Ferguson, (1832) Hay. 541.

(i) Jones v. Flint, (1839) 10 A. & E. 760; 9 L. J. N. S. Q. B. 252.

(k) Griffiths v. Jenkins, (1864) 10 Jur. N. S. 207.

(l) Mayfield v. Wadsley, (1824) 3 B. & C. 357; 3 L. J. (O. S.) E. B. 31; and see Sug. 14th ed. 125.

(m) Lord Falmouth v. Thomas, (1832) 1 Cr. & M. 89;2 L. J. N. S. Ex. 57.

(n) Teall v. Auty, (1820) 4 Moo. 542; Knoules v. Michel, (1811) 13 Ea. 249.

(o) Lord Falmouth v. Thomas, (1832) 1 Cr. & M. p. 109; 2 L. J. N. S. Ex. 57.

If an agreement relating to the sale of land is unenforceable under the section, it will also be so as respects any other matters, which are either inseparably mixed up with, or are dependent upon, the principal agreement (q). Thus, where a tenant agreed to rent a furnished house, and the landlord was to supply additional furniture after the tenant had taken possession, it was held that the want of a written contract was a bar to an action for non-delivery of the furniture (r). So, upon a parol agreement to let a house, and to make certain repairs, which the tenant was to pay for, it was held that the landlord could not sue him for the cost of such repairs (s). But this rule does not apply where the contracts, though in a sense connected with each other, are in fact independent and separable (t).

Void agreement for (inter alia) the sale of land, where void in toto.