In Wkipplev. Foot, 2 John. 422, it was decided by this court that wheat growing is a chattel, and may be sold as such on execution. The same doctrine; was held by this court in Stewart v. Doughty, 9 John, 112, where it added that the purchaser became entitled to the right of ingress, etc., to gather the crop. On this question the English cases seem to me not quite consistent. In Poulter v.

Killingbeck, 1 B. & P. 398, Buller, Justice, in speaking of a parol transfer of half the growing crops, says, with respect to the point made at the trial on the statute of frauds, this agreement does not relate to any interest in the land, which remains altogether unaltered by the arrangement concerning the crops. In Crosby v. Wadsworth, 6 East, 611, Lord Ellenborough, speaking of a parol contract for the sale of a crop of growing grass, says, "I think that 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." But, subsequently, in Parker v. Staniland, 11 East, 363, the same learned judge held that a parol contract for a crop of potatoes in the ground was valid; and the distinction he took was, that the one was growing, and the other had come to maturity; and also, that the one was not delivered, being not yet in a fit state for delivery; but the other was, by the agreement itself, delivered as far as they were capable of delivery.

The distinction taken by the Supreme Court of Errors in Connecticut, 3 Day, 484, is this: When there is a sale of property which would pass by a deed of land as such, without any other description, if it can be separated from the freehold, and by the contract is to be separated, such contract is not within the statute.

Whatever may be the rule of construction elsewhere, we are not at liberty here to question the validity of a parol contract for the sale of growing crops. Was there any evidence of such a contract?

Rejecting all that passed anterior to, and at the time of executing the written contract, the proof is that Wilcox, when treating with the defendant as to the sale of the farm, declared the wheat to belong to the plaintiff. This is sufficient in my judgment to authorize a jury to presume a formal and valid contract for the sale of the wheat.

The title to the wheat, then, being in the plaintiff, it was not in the power of Wilcox to convey it to the defendant. Suppose Wilcox had leased this wheat-field for three years by parol, the lease would have been valid. Any absolute conveyance by him, subsequently, could not divest the rights of the lessee by parol. For the same reason, the assignment by Wilcox to the defendant, though absolute in its terms, conveyed no more than Wilcox had a right to convey. The crop of wheat, therefore, I consider legally shown to be the property of the plaintiff.

2. Could he, then, maintain this action? In answer to this question, I say, in the language of Lord Ellenborough, 6 East, 610, "As the plaintiff appears to have been entitled 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." He cites Co. Litt. 4 b., and 3 Bur. 1824; in the first of which it is laid down, that whoever hath the vesture of the land, as the crops, shall have an action of trespass quare clausum fregit. In the latter (the case of Wilson v. Mackreth), it was objected that trespass would not lie. Lord Mansfield said there wants nothing to answer the objection but to state the case, which he summed up thus: "The plaintiff's right is in a several piece of ground, butted and bounded; a separate right of property to take the profit of the turf, and to dig it for that purpose. The plaintiff has this right exclusive of all others, and the defendant has disturbed him in it; therefore, trespass lies though he has not the absolute right to the soil." Mr. Justice Yates said, whenever there; is an exclusive right, trespass lies. In this case there was an exclusive right, necessarily, to the close, until the harvesting of the wheat. And in Stewart v. Doughty, 9 John. 113, Kent, Ch. Justice, says, "The general language of the authorities is to this effect: That the grantee vesturae terrae, or herbagiiterrae, may maintain trespass, though he has not the soil."

I am, therefore, of opinion that the plaintiff is entitled to judgment.

Judgment for the plaintiff.

Hirth V. Graham

50 Ohio State, 57. - 1893.

Bradbury, J. - The plaintiff in error brought an action before a justice of the peace to recover of the defendant in error damages alleged to have been sustained on account of the refusal of the latter to perform a contract by which he had sold to the plaintiff in error certain growing timber.

The defendant attempted to secure the dismissal of the action on the ground that the justice had no jurisdiction of an action for the breach of such a contract. Failing in this, and the action being tried to a jury, he requested the justice to instruct the jury "that if they find from the evidence that the trees about which this action is brought were at the time of said alleged contract then growing upon the land of defendant, and that no note or contract or memorandum of the contract of sale was at the time made in writing, the plaintiff cannot maintain this action, and your verdict should be for the defendant; "which instruction the justice refused to give, but on the contrary gave to them the following instructions on the subject: "This is an action for damage, not on the contract nor to enforce the same, and if you find that a contract was made, verbal or otherwise, and the defendant refused or failed to comply with its terms, the plaintiff is entitled to any damage you may find him to have sustained by way of such non-compliance."