Leonard v. Medford

• Court: Maryland Supreme Court
• Writing for the Court: McSHERRY, C.J.
• Citation: Leonard v. Medford, 85 Md. 666, 37 A. 365 (Md. 1897)
• Decision Date: 30 April 1897
• Parties: LEONARD v. MEDFORD.

37 A. 365

85 Md. 666

LEONARD v. MEDFORD.

Court of Appeals of Maryland

April 30, 1897

Appeal from circuit court, Talbot county.

Bill by James M. Leonard against Frank Medford for injunction. From a decree in favor of defendant, plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and BRYAN, BRISCOE, RUSSUM, FOWLER ROBERTS, PAGE, and BOYD, JJ.

J Frank Bateman, for appellant.

William R. Martin, for appellee.

McSHERRY C.J.

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 a farm, part of which was in timber, verbally agreed on October 15, 1896, to sell to William Taylor all the growing oak trees thereon which measured 18 inches and upward across the stump, and which then stood within a designated area containing from 140 to 150 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 sawmill 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 appellant being informed of this fact, he told Taylor to let the mill come on down to his (the appellant's) woods. On the 20th of October, Medford the appellee, who was an employé of Taylor, reached the appellant's lands with the portable sawmill, the boiler, and engine, and at once notified Leonard of his arrival, and on the following day Leonard went to the woods and helped to locate the place for the boiler and mill to be set. At the same time Leonard pointed out the lines of the woodland, and stated that all the oak timber within those lines was Taylor's. The engine and boiler were at once put in place, and wells for supplying the necessary water to operate the engine were immediately sunk. Subsidiary stipulations provided that Taylor should cut down some pine trees for temporary shade, but these structures were to remain the property of Leonard. Leonard selected and pointed out the pine trees to be felled for these purposes, and they were cut as he directed. On the 24th of October, Leonard wrote Taylor a letter, which, while neither admitting nor denying the verbal contract that it is conceded in the statement of facts was really entered into, suggested a different mode for ascertaining the amount to be paid and the quantity of timber to be cut. This letter led to another interview, in which Leonard insisted that the standing red oak trees should be excluded from the sale, but in which Taylor claimed that the original bargain should be adhered to. Taylor then presented a written agreement embodying the terms of the verbal understanding, and tendered the cash payment, and the notes for the deferred payments; but Leonard refused either to sign the written agreement or to accept the money and the promissory notes. Medford, in behalf of Taylor, began at once to cut the oak timber, and continued to work until, on the 18th of November, a bill was filed on the equity side of the circuit court for Talbot county by Leonard against Medford, praying that an injunction might be issued restraining the further cutting of the timber, and an injunction as prayed for was issued. Medford promptly answered. An agreed statement of facts was made up and signed, and a motion to dissolve was immediately filed. On February 2, 1897, the motion was heard and the injunction was dissolved, the bill was dismissed, and each party was required to pay his own costs. From that decree the pending appeal was taken.

If the first of the two 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, C.J., in 1 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; while Lord Mansfield held in Emmerson v. Heelis, 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 Exch. 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, etc., 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; while 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 Barn. & C. 829, 12 E. C. L. 377. But there has been superadded of late, by modern English cases, a qualification which seems to be founded in reason, and which may in a great measure, by a judicious application, furnish a more satisfactory and stable rule for determining whether a sale of that which is the natural growth of the soil is or is not within the fourth section of the statute. It having been held in Smith v. Surman, 9 Barn. & C. 561, that an agreement for the sale of growing timber at a designated price per foot, and which the vendor was to cut and had actually commenced to fell, was within the seventeenth, and not the fourth, section of the statute, because, as intimated in Earl of Falmouth v. Thomas, 1 Cromp. & M. 105, the seller was to convert the standing trees into chattels, it was afterwards determined by Coleridge, C.J., and Brete and Grove, JJ., in Marshall v. Green, 1 C. P. Div. 35 (decided in 1875), that the sale of growing timber to be cut by the purchaser was not within the fourth section, because, as there was no intention that the purchaser should...