Willard v. Higdon
| Decision Date | 24 June 1914 |
| Docket Number | 10. |
| Parties | WILLARD et al. v. HIGDON. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Frederick County; Hammond Urner, Glenn H Worthington, and Edward C. Peter, Judges.
"To be officially reported."
Action by Charles F. Willard and others against Henry W. Higdon. From a judgment for defendant, plaintiffs appeal. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON STOCKBRIDGE, and CONSTABLE, JJ.
Charles McC. Mathias and Albert S. Brown, both of Frederick (Emory L Coblentz, of Frederick, on the brief), for appellants.
Milton G. Urner and John S. Newman, both of Frederick (Benjamin F. Reich, of Frederick, on the brief), for appellee.
The appellee rented a farm from David H. Roelkey from April 1, 1910, to April 1, 1911, by an agreement in writing which contained various provisions; amongst others, that Mr. Roelkey was to have one-half of all the wheat, corn, oats, clover seed, timothy seed, rye, and hay raised on the farm, which the appellee agreed to deliver to any point within five miles therefrom free of cost to Mr. Roelkey. On December 27, 1910, Mr. Roelkey agreed to sell the farm to the appellants. At that time the following note was given to him:
That was signed by C. F. Willard, E. H. Willard, and M. L. Willard. On the same day Mr. Roelkey gave the appellants a receipt as follows:
On March 25, 1911, Roelkey and wife executed a deed to the appellants for two tracts of land described by courses and distances, which in the aggregate contained 284 acres, more or less, and it seems to be conceded that the land conveyed by the deed was the same intended to be sold as referred to in the note and receipt above. There is no such reservation in the deed, but Roelkey claims that it was at the time of the sale distinctly, but orally, agreed that he was to have the half of the wheat crop then growing, which, under the terms of the lease to the appellee, he was entitled to. The appellants deny that there was such an agreement, and contend that there could be no binding reservation made by parol, as it would be in contradiction of the written agreement and of the deed. Roelkey claims that he positively refused to sell the farm for less than $18,000 and the reservation of the half of the wheat crop, and that, when he insisted upon there being inserted in the agreement provisions that the appellee was to remain on the farm and that he reserved the growing wheat crop, Charles F. Willard, who wrote the papers, said:
"It is not worth while; it is not like strangers; we have been friends all our lives; we want only what is right."
He had made a mistake in one of the papers, which had to be written over again, and Roelkey claims that he again insisted upon those provisions being inserted, and said his son did not understand the omission, and Willard then turned to the son, and, addressing him, said:
"Dave, Mr. Higdon is to stay on there and your father reserves the growing wheat crop; is that plain enough to you?" Roelkey claims that the reservations were accordingly omitted at the instance of Willard.
The appellee delivered the half of the wheat to a mill for Roelkey, instead of delivering it to the appellants who notified him of their claim to it. The appellants sued him, and at first simply had six of the usual common counts in the narr., but amended by adding a seventh count:
"For money due for the use and occupation of the plaintiffs' lands in Frederick county, Maryland."
The plaintiffs finally abandoned all of the counts in the declaration except the seventh. There are 12 bills of exception containing rulings as to the admissibility of evidence, and the thirteenth embraces the prayers; the plaintiffs having offered 7, all of which were rejected excepting the fourth, and the defendant 3, the first and second of which were rejected, and the third granted. The case resulted in a judgment for the defendant, and from that this appeal was taken.
As the important question in the case is whether there could be a valid reservation of the wheat crop by parol, notwithstanding the agreement of December 27, 1910, and the deed in evidence, we will consider that question before referring to the exceptions and prayers separately. Before doing so, however, it will he well to say that we do not understand how the question whether a tenant can deny his landlord's title is involved in this case. That was argued at some length orally and in the brief of the appellants, but there can be no difficulty about the law on that subject. If it was validly agreed between the appellants and Roelkey that the latter was to have the one-half of the wheat crop, it could hardly be contended that the appellee could not defend against this suit by reason of the fact that he is the tenant of the appellants. If, for example, the deed had contained such a reservation, the right of the appellee to defend on the ground that he had delivered the wheat in pursuance of that reservation could not have been questioned, and therefore we say that the important question is whether there was a valid reservation of the wheat crop.
It cannot be doubted that in this state growing crops, if fructus industriales, such as a crop of wheat, are regarded as chattels, and can be sold without complying with the requirements of section 4 of the statute of frauds. Purner v. Piercy, 40 Md. 212, 17 Am. Rep. 591; Wilson v. Fowler, 88 Md. 601, 42 A. 201, 42 L. R. A. 849, 71 Am. St. Rep. 452. In this state even a sale of growing trees to be presently cut and removed by the vendee is not within the operation of that section. Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104; Leonard v. Medford, 85 Md. 666, 37 A. 365, 37 L. R. A. 449. If prior to the passage of the Uniform Sales Act in 1910 there could have been any doubt about growing cross being chattels, that statute dispels it. In section 97 of article 83 it is declared that:
As that act took effect June 1, 1910, it is applicable to this agreement, which was made December 27, 1910.
Under the decisions in Eichelberger v. McCauley, 5 Har. & J. 213, 9 Am. Dec. 514, and Rentch v. Long, 27 Md. 188, a sale of a crop not yet thrashed, shucked, or gathered was not within the seventeenth section of statute of frauds, because, work and labor being necessary to prepare it for delivery, it was not a sale of goods, wares, and merchandise within the meaning of that section, but that has been changed by the Uniform Sales Act, § 25, which reads as follows:
Although subsection (2) has changed the rule announced by our predecessors, if the alleged agreement as to the crop between the appellants and Mr. Roelkey can be said to amount to a contract to sell or a sale, then the latter is the buyer, and the further question arises as to whether he had done any of the things which are a compliance with the statute. That must be answered in the affirmative, as Roelkey did actually accept and receive the wheat, and he did give something in part payment--indeed, in payment in full --as he conveyed the property for which the consideration was the $18,000 and the reservation of the wheat crop, if his contention in that respect be correct.
Moreover section 25 says that a contract to sell or a sale shall "not be enforceable by action, unless," et...
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