Ives v. Atlantic & N.C.R. Co.
| Decision Date | 25 September 1906 |
| Citation | 55 S.E. 74,142 N.C. 131 |
| Parties | IVES v. ATLANTIC & N.C. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Craven County; Long, Judge.
Action by B. W. Ives against the Atlantic & North Carolina Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
An oral contract, whereby one of the parties agreed to cut timber on the land of the other and deliver it for a certain price per cord, was not within the statute of frauds.
Standing timber is a part of the realty, and a contract for the sale thereof must be in writing, within the statute of frauds.
Civil action tried before Long, J., and a jury at May term, 1906 of Craven superior court. The action was brought to recover damages for breach of an oral contract between the parties by which the plaintiff agreed to cut for the defendant and deliver along its right of way 15,000 cords of wood, 3,000 cords of which were to be cut from the plaintiff's land and the balance from the land of the defendant. For the 3,000 cords the defendant agreed to pay $2 per cord and for the remainder $1.75 per cord, the defendant, as to the latter, being allowed a deduction on the price of 25 cents per cord for what is called "stumpage"; that is, for the trees furnished by it or cut on its land. Plaintiff cut 5,000 cords, for which he was paid, and he cut and was ready to deliver 5,184 cords, and has cut and delivered 748 cords, for which he was not paid, making 10,986 cords, and leaving uncut 4,014 cords. There were 1,140 of the 5,090 cords which were not delivered on the right of way, because it was already full of other wood and there was no room for it. This was hauled by plaintiff to his tramway and was ready for delivery, when defendants directed that it should be inspected and paid for. Six hundred cords of it was afterwards delivered on the right of way. The plaintiff alleged that he had been prevented from complying fully with his part of the contract by the wrongful acts of the defendant, although he was at all times ready, able, and willing to do so, and there was evidence tending to support the allegation. There was evidence tending to show that the plaintiff had not complied in all respects with the contract on his part. It was also in evidence that there had been no breach of the contract by the defendant, until after the road was leased; the former president of the defendant company stating that he would have carried out the contract fully had he been continued in office. The defendant pleaded a counterclaim consisting of $1,193 paid to the plaintiff for the 1,140 cords of wood cut from its land, which it alleged had not been delivered on the right of way and which had become worthless, and $285 for stumpage, and $413.40 for quarters erected for the plaintiff's hands, at his request, making in all $2,691.40, and there was some evidence to sustain the demand.
The plaintiff objected to a juror, N.H. Russell, upon the ground that he was now in the employ of the lessee of the defendant and had formerly been in its employ, the said lessee being responsible under its contract with the defendant for any recovery against the defendant. The objection was sustained and the defendant excepted. The plaintiff was permitted to prove by one J. A. Meadows, over the defendant's objection, that he had advanced $13,000 to the plaintiff to enable him to carry out this contract, and that the defendant still owed him $7,300 on the debt. This evidence was introduced solely for the purpose of showing that the plaintiff was ready and able to perform his part of the contract. Many other exceptions were taken by the defendant to the rulings and to the charge of the court but it is not necessary to make any special reference to them here as they are noticed in the opinion. The issues, with the answers thereto, were as follows:
Judgment was entered upon the verdict, and the defendant appealed.
W. C Munroe, P. M. Pearsall, A. D. Ward, and O. H. Guion, for appellant.
D. L. Ward and W. W. Clark, for appellee.
WALKER, J. (after stating the case).
It may not be taken as settled that growing trees are a part of the realty, and a contract to sell or convey them or any interest in or concerning them must be reduced to writing. They are fructus naturales, and, being rooted in the soil, are by nature as much annexed to the freehold as any permanent fixture can be. Scorell v. Boxall, 1 Younge & Jervis, 396; Carrington v. Roots, 2 M. & W. 254; Rodwell v. Phillips, 9 M. & W. 501; Evans v. Roberts, 5 B. & C. 829. The course of judicial decision in England upon this subject, from the time of the dictum of Treby, C.J., in Anon., 1 Lord Raymond, 182, to the latest period, will be found well stated in Reed on Statute of Frauds, § § 707, 711. We have adopted the rule as given in the cases above cited, and a contract for the sale of standing timber has always been considered by us as within the meaning and intent of the statute. Brittain v McKay, 23 N.C. 265, 35 Am. Dec. 738; Mizell v. Burnett, 49 N.C. 249, 69 Am. Dec. 744; Moring v. Ward, 50 N.C. 272; Flynt v. Conrad, 61 N.C. 190, 93 Am. Dec. 588; Green v. Railroad, 73 N.C. 524; Mizell v. Ruffin, 113 N.C. 21, 18 S.E. 72. The question was directly presented and decided in Drake v. Howell, 133 N.C. 162, 45 S.E. 539, and Hawkins v. Lumber Co., 139 N.C. 160, 51 S.E. 852. But the contract of the parties to this action was not one for the sale of standing trees, but, in the one case, for the sale and delivery of cord wood, and, in the other, for the conversion of trees growing on the defendant's land into cord wood and the delivery of the same on the defendant's right of way. It was not contemplated by the parties that there should be a transfer of any title to or interest in the trees as they stood upon the land, and this is essential to bring the agreement within the purview of the statute. 29 Am. & Eng. Enc. (2d Ed.) 880. In Washburn v. Burrows, 1 W. H. & G. (Exch.) 115, Rolfe, B., for the court, said that where the vendor, who is the owner of the soil, sells what is growing on the land, whether natural produce (prima vestura), such as timber, grass, herbage or apples, or the annual fruits of industry (fructus industriales), as corn, pulse, or the like, on the terms that he (the vendor) is to cut, or sever them from the land and then deliver them to the purchaser, the latter acquires thereby no interest in the soil "which in such case is only in the nature of a warehouse for what is to come to him merely as a personal chattel." It was ruled in the leading case of Smith v. Surman, 9 B. & C. 561, that where the owner of land agreed with another to cut timber from his own land and deliver the trees, when cut down or severed from the freehold, to the latter for a stipulated price, the statute did not apply, and the particular agreement, in that case, being construed to have the said effect in law, was therefore held not to be within the statute. And the converse of the proposition is equally true, that where one contracts with another to cut timber from his land and deliver it to him when cut or severed, the statute has no application. It has been so expressly decided. Killmore v. Howlett, 48 N.Y. 569; Forbes v. Hamilton, 2 Tyler (Vt.) 356; Scales v. Wiley, 68 Vt. 39, 33 A. 771; Green v. Armstrong, 1 Denio (N. Y.) 550; Boyce v. Washburn, 4 Hun (N. Y.) 792; 2 Reed on Statute of Frauds, § 711. The courts properly said in the cases cited that to give the statute the construction contended for, would be to destroy the right of recovery of almost every laborer at harvesting or mowing which generally and almost universally rests on a parol contract, and, further, that it would make a writing indispensable to the validity of a contract by the owner of a peat bed or a sand bank to deliver even a load from it, and, we may add, it would jeopardize the rights of every woodman who for hire fells trees in the forest. The construction is utterly inadmissible. It has been said in some cases, following a dictum of Littledale, J., in Smith v. Surman, supra, that if the trees are sold by the vendor, who is the owner of the land upon which they are standing, to the vendee, with a stipulation that they must be cut and removed at once or within a reasonable...
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