37 Cal. 634 | Cal. | 1869
The points of counsel are also stated in the opinion of the Court.
The action is for the conversion of three thousand bushels of wheat, and the facts, as found by the Court, are substantially as follows:
In 1868, one Bowen plowed and sowed in wheat about two hundred and forty acres of the public lands of the United States. The land was open and uninclosed, and Bowen never had any possession or right of possession, except such as was conferred by his cultivation in the manner stated. On the 16th of March, 1868, Bowen sold the growing crop, by verbal contract, to the plaintiff, at the price of two dollars and twenty-five cents per acre. By the terms of the contract the plaintiff was to pay, and did pay, twenty dollars down, and agreed to pay one hundred and eighty dollars more on the first of April then next, and the remainder when the
The cultivated fields in the vicinity or neighborhood were generally uninclosed, and, therefore, open to the incursions of cattle, and it was customary to employ some person to herd the cattle and keep them from the crops. In this the owners of the crops united, and contributed the requisite funds. The plaintiff united with other owners of crops on the first of April, and contributed the sum of seventeen dollars as his share for the protection of the crop in question. From that time until the first of J uly, the person so employed looked after and protected the crop from the incursions of cattle. The plaintiff, however, frequently visited the premises for the purpose of looking after and protecting the crop.
Two points are made by the appellant.
First—That the sale to the plaintiff was of an interest in land, within the meaning of the sixth section of the Statute of Frauds of this State, and, therefore, void, because not in writing.
Second—If the sale was of chattels, there was no immediate delivery, followed by an actual and continued change of possession, within the meaning of the fifteenth section of the statute, and the sale was, therefore, void, as against the defendant, who is a subsequent purchaser in good faith.
hleither point can be sustained.
a. Contracts for the sale of growing periodical crops— frucius industriales—are not within the Statute of Frauds, and therefore need not be made in writing. After some vacillation this has become the settled doctrine. (Marshall v. Ferguson, 23 Cal. 65.) For, as we consider, is the rule
b. A growing crop, while growing and until ready for the harvest, is, also, unaffected by the fifteenth section of the statute in relation to the sale of goods and chattels in the possession and under the control of the vendor. A growing crop, until ready for the harvest, cannot, by itself, become the object of a delivery, and can only be delivered into the possession of the vendee by delivering to him the possession of
Judgment and order affirmed.