Scales v. Wiley

• Decision Date: 05 December 1895
• Citation: Scales v. Wiley, 68 Vt. 39, 33 A. 771 (Vt. 1895)
• Parties: SCALES v. WILEY.
• Court: Vermont Supreme Court

33 A. 771

68 Vt. 39

SCALES

v. WILEY.

Supreme Court of Vermont Windsor.

Dec. 5, 1895.

Exceptions from Windsor county court; Taft, Judge.

Action by Aurilla Scales against Andrew Wiley to recover damages for breach of an agreement. To a judgment in favor of plaintiff, defendant excepts. Affirmed.

It appeared that the plaintiff owned a barn standing upon her land, and that she and the defendant entered into an agreement by which the plaintiff was to take it flown and reerect the frame upon the land of the defendant for $75, the defendant to draw the frame from her land to his, and to furnish what new timber might be necessary. The plaintiff did take down the barn, but the defendant refused to proceed with the contract, upon the ground that the timber was rotten and worthless. The evidence of the defendant tended to show that the plaintiff falsely represented the condition of the frame, and warranted it to be sound; that of the plaintiff, that the defendant, before the contract, examined it, and saw its condition as it actually was. The court instructed the jury that if the defendant inspected the barn, and saw the alleged defects before be made the agreement, he could not avail himself of any fraudulent representation or false warranty in that respect. The defendant also claimed that the contract was within the statute of frauds, either as a contract for the sale of an interest in land, or for the sale of goods of the value of more than $40, and excepted to the refusal of the court to so hold.

W. W. Stickney and J. G. Sargent, for plaintiff.

G. A. Davis, M. S. Buck, and S. E. Emery, for defendant.

TYLER, J. The special count alleges that the plaintiff sustained damages by reason of the nonperformance by the defendant of a contract by which the plaintiff was to erect a barn frame on the defendant's land, which contract the defendant prevented the plaintiff from completing by not removing the timber to his premises, as he had agreed, and refusing to proceed with the contract after the plaintiff had provided labor and materials according to her agreement. The plaintiff's evidence tended to show that in the year 1893 she owned a barn, situated upon her premises, which the defendant wished to purchase; that the plaintiff was to take the barn down, the defendant to draw it to his premises, the plaintiff's son to reerect it upon the defendant's land, the defendant furnishing such new timber as should be required, and to pay the plaintiff $75. It clearly was not a contract for the sale of land or of any interest therein. While the building, as it stood on the plaintiff's land, was a part of the realty, by the contract it was to be taken down, and the timber piled up ready for removal; so that it was to be changed from real to personal estate before anything was to be done by the defendant. It was not a contract for the sale of personal property. If the contract had been that the defendant should pay a certain price for the timber when the building was taken down, it would have been a contract for the sale of personal property; but it was not intended that the title should pass until the building should be reerected. No act was required of the defendant except to move the old timber, and furnish whatever new timber was required.

The general rule is stated in Benj. Sales, § 116: "Things attached to the soil are not goods, though, when severed from it, they are. Thus, growing trees are part of the land, but the...