85 Md. 666 | Md. | 1897
delivered the opinion of the Court.
There are two questions presented by this record. The first one is this : Does the verbal contract set out in the bill of complaint fall within the fourth section or the seventeenth section of the Statute of Frauds ? And the second one is: If the contract be one covered by the seventeenth section was there such a part performance by a delivery and acceptance as to gratify the terms of that section ? The facts out of which these questions arise are, in brief, as follows: Leonard, the appellant, being the owner of the farm, part of which was in timber, verbally agreed on October the fifteenth, eighteen hundred and ninety-six, to sell to William Taylor all the growing oak trees thereon, which measured eighteen inches and upwards across the stump, and which then stood within a designated area containing from one hundred and forty to one hundred and fifty acres of land. The price and the dates when payments of the purchase money were to be made were specified. At the time the verbal agreement was made Taylor’s saw-mill was loaded on the cars at some distance away ready to be transported to such point as he might be able to procure timber for cutting; and upon the
If the first of the twm questions here involved were an open one in Maryland, it would be quite interesting to examine and weigh the numerous and conflicting decisions, both in England and in this country, which have been pronounced upon this vexed and difficult subject. The early English cases are widely divergent and cannot possibly be reconciled. To illustrate: Treby Ch. J. in i Ld. Raym. 182 reported that he had ruled at nisi Prius that a sale of standing timber was not within the statute, but was merely a sale of a chattel interest; whilst Lord Mansfield held in Emmerson v. Heclis, 2 Taunt, 38, that a sale of a crop of growing turnips was within the fourth section of the Statute of Frauds. Perhaps it may be safely said that the more recent English cases are susceptible of the following classification, representing distinct but not inharmonious, though often closely allied principles: First, that an agreement to transfer the property in anything attached to the soil, but which is to be severed from the soil and converted into goods before the property is transferred to the vendee, is an agreement for the sale of goods. Washburn v. Burrows, 1 Ex. 107. Secondly, that where there is a sale vesting the'property at once in the purchaser before severance, a distinction is made between what is fructus naturales and fructus industriales — the former, the natural growth of the soil, as grass, timber, &c., which at the common law are part of the soil, are an interest in land and a sale of them is'within the fourth section of the statute; whilst the latter are chattels, because by the common law growing crops produced by labor and expense were, as the representatives and results of that labor and expense, treated as independent chattels. Evans v. Roberts, 5 B. & C. 829 (12 E. C. L. R. 377). But there
In Maryland, Massachusetts, Maine, Kentucky and Connecticut, sales of growing trees to be presently cut and removed by the vendee are held not to be within the operation of the fourth section of the Statute of Frauds. Smith v. Bryan, 5 Md. 141; Purner v. Piercy, 40 Md. 212; Clafiin v. Carpenter, 4 Met. 580; Nettleton v. Sikes, 8 Met. 34; Bostwick v. Leach, 3 Day, 476; Erskine v. Plummer, 7 Me. 447; Culter v. Pope, 13 Me. 377; Cain v. McGuire, 13 B. Mon. 340; Byassee v. Reese, 4 Met. (Ky.) 372.
Whilst in Smith v. Bryan no other authorities are cited than 1 Green. Ev., sec. 271, and no discussion of the subject was attempted, still the bare statement of the principle by so eminent and distinguished a Jurist as the late Chief Justice LeGrand is entitled to the highest consideration and the greatest weight. That decision, delivered in eighteen hundred and fifty-three, established the law in Maryland to be that a parol sale of growing timber is not within the fourth section of the Statute of Frauds; and though many, perhaps most, of the Courts of last resort in other States of the Union have taken the opposite view, we have no disposition to unsettle a doctrine that has been accepted and not questioned in Maryland for more than forty years. It seems to us that the conclusion reached in Smith v.
By the section just named no contract for the sale of any goods, wares and merchandise for the price of ten pounds sterling and upwards is good unless the buyer shall accept part of the goods so sold and actually receive the same, or shall give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing of the bargain be made and signed by parties to be charged by such contract. Though, therefore, the contract be verbal it will be still good if the articles sold or some of them are actually received and accepted by the vendee.
The appellant actually put the purchaser in possession of the trees and pointed out the lines of the tract whereon the timber to be cut then stood, and the appellee, as the employee of Taylor, proceeded to fell the trees and had, in fact, cut down some of them, in part performance of the contract, before the injunction was applied for or issued. Here, then, the vendee in felling the trees did an act “ of wrong if he ” was not the owner of them, “ and of right if he” did own them, and “the doing of that act” coupled with the lawfulness of his entry on the land, “ is evidence that he had accepted them.” Under the agreed statement of facts it is conceded that the appellant placed Medford, the agent of the purchaser, in full possession of the timber; and it is now too late for the vendor to repudiate the contract on the ground that it is void under the seventeenth section of the Statute of Frauds.
As we find no error in the decree from which the pending appeal was taken it will be affirmed with costs in this Court.
Decree affirmed with costs in this Court; the costs below to be paid as directed by the decree.