173 Wis. 351 | Wis. | 1921
The defendant W-olf conténds that since the oral agreement of April 2, 1917, relates to an interest in land — standing timber, — it is void under the statute of frauds. Sec. 2302, Stats. The defendant Lindozv makes the same defense, and further claims that since his grantor, Heise, was a bona fide purchaser for value and without notice of the oral extension of time for the removal of the timber, he took as good a title as Pleise had and is therefore not liable, citing 2 Tiffany, Real Prop. 1095; Simon v. Kaliske, 1 Sweeny (N. Y.) 304; and East v. Pugh, 71 Iowa, 162, 32 N. W. 309. If the first of these respective claims is sustained it disposes of the case in favor of the appellants and alleged errors in procedure need not be discussed.
That a contract for the sale of standing timber relates to an interest in land and comes within the statute of frauds is well settled in this state (Daniels v. Bailey, 43 Wis. 566; Seymour v. Cushway, 100 Wis. 580, 590, 76 N. W. 769, and cases cited; Huntington v. Burdeau, 149 Wis. 263, 268, 135 N. W. 845, and cases cited), and is not contested by plaintiff. But he contends that though the contract is within the statute of frauds the oral agreement of April 2d was but an extension of time of performance, and under the rule in Hirsch R. M. Co. v. Milwaukee & F. R. V. R. Co. 165 Wis. 220, 161 N. W. 741, the defendants are estopped from setting up the statute as a defense. In that case the oral agreement related solely to the time of performance, without in any other respect modifying the written contract of sale of
By the Court. — Judgment reversed as to appellants, and cause remanded with directions to dismiss the complaint as to them upon the merits.