Miller v. Davis

187 Iowa 1148 | Iowa | 1919

Ladd, C. J.

The oral contract, alleged in the petition as amended, was not for the purchase of timber growing on defendant's land, as seems to have been assumed in the demurrer, but for labor to be performed in cutting, hauling, and sawing the same. The compensation to be paid was to be measured by the price to be received for the lumber, after being sawed, and the walnut logs, which could be disposed of to better advantage as logs. That an executory oral contract for the sale of standing or growing timber is a contract for an interest in land, cannot well be questioned. Garner v. Mahoney, 115 Iowa 356. The distinction between such an agreement and one for the preparation of such timber for the market, is plain. Both concern standing timber, but one is for the sale thereof, attached to the soil, and the other is for the labor in severing from the soil, and work on the felled trees. The price contracted was for: (1) Severing the trees from the soil; (2) hauling them to the saw mill; and (3) sawing all but those walnut logs for which a better price might be obtained than when sawed. Plaintiffs were not to acquire the trees when growing nor the lumber when- sawed, nor when in logs. Their sole compensation — all they were to receive for what they did — was one half of the sale price. As well say that a laborer who is employed to help harvest grain or mow hay in the field may not collect compensation for what he does, for that an interest in land is involved! In Sanders v. Clark, 22 Iowa 275, this court ruled that, “In contracts for the sale of standing timber, to be taken off in a. given time, the purchaser takes no beneficial interest in the land itself.” Sales of growing trees, to be.cut, and removed immediately by the vendee, are held in many jurisdictions not to constitute sales of interests in land, within the meaning of the statute, of frauds. Erskine v. Plummer, 7 Me. *447; Robbins v. Farwell, 193 Pa. St. 37 (44 Atl. 260); Tilford v. Dotson, 106 Ky. 755 (51 S. W. 583); Leonard v. Medford, 85 Md. 666 (37 Atl. 365); Emerson v. Shores, 95 Me. 237 (49 Atl. 1051). This conclusion would seem necessarily to follow the decision in Sanders v. Clark, supra. In the case at bar, there was no purchase of the growing timber, or even of lumber or logs when cut. It was merely a contract of hire. The compensation was for labor performed, and one half of the price to be obtained was the measure of such compensation. In Ives v. Railroad, 142 N. C. 131 (9 Am. & Eng. Ann. Cas. 188), by the terms of an oral contract, the plaintiff agreed to cut for defendant and deliver along the right of way 15,000 cords of wood, 3,000 cords of which were to be cut from plaintiff’s land,, and the balance from the land of the defendant. For the 3,000 cords, defendant was to pay $2.00 per cord, and for the remainder, $1.75 per cord, the defendant to deduct from the price, 25 cents per cord for what was called stumpage, — that is, for trees furnished by it, or cut on its land. There was a suit based on alleged breach of performance, in which the question as to whether this was a contract for an interest in land was involved; and, after reviewing the authorities, the court reached the conclusion that it was “a contract, not for the sale of trees, but merely for the cutting of them into cordwood: it is simply a contract for employment, and not for any interest in the article upon which the labor is to be bestowed.” A like conclusion was reached in Lambden v. West, 7 Del. Ch. 266 (44 Atl. 797), and in Hamilton v. McDonnell, 5 U. C. Q. B. O. S. 720. See, also, Scales v. Wiley, 68 Vt. 39 (33 Atl. 771). To construe an agreement such, as herein considered as within the statute of frauds would be tantamount to saying that undertakings of laborers to fell trees, dig gravel from a pit, or cut growing grain or hay, involve interests in land, and are not provable by parol evidence. Such is not the law. The ruling on the demurrer was erroneous, and it, with the judgment, is— Reversed.

Weaver, Gaynor, and Stevens, JJ., concur.