to be charged by such contract, or their agents thereunto lawfully authorized." CHAP. III. between fourth and seventeenth sections. It will be seen that there is an important distinction Distinction between the provisions contained in these two sections. Under the fourth, all contracts must be evidenced by writing; while under the seventeenth, contracts for the sale of goods, etc., under the value of £10 need not be in writing; and if the value is more than £10, acceptance and receipt of the goods, or payment of earnest, will dispense with the necessity for writing. ing crops. In the case of contracts for the sale of growing crops, Sale of growit is of importance to determine whether the sale is of "an interest in land" within the fourth section, or of "goods, wares, and merchandises" within the seventeenth, as by the Stamp Act, 55 Geo. III. c. 184, sched. title "agreement," re-enacted in the Stamp Act, 1870, (a) every "memorandum, letter, or agreement, made for or relating to the sale of any goods, wares, or merchandise" is exempted from stamp duty; whereas every contract for the sale of land requires to be stamped. It is difficult to lay down any precise rule as to when a sale of growing crops is a sale of an interest in or concerning lands. Lord Abinger, in Rodwell v. Phillips,(b) said:—“It must be admitted, taking the cases altogether, that no general rule is laid down by any one of them that is not contradicted by some other." (c) (a) 33 & 34 Vict. c. 97. Sch. tit. agreement. (b) 9 M. &. W. 505. (c) And see Jones v. Flint, 10 A. & E. 753; 2 P. & D. 594; Marshall v. Green, L. R. 1 C. P. D. 35. The author ventures to CHAP. III. Where the contract is, that growing crops shall be severed, and the property in them transferred immeSale of crops diately, then the contract is for a sale of goods within after being severed. the seventeenth section, and not for a sale of an interest in land within the fourth section. (a) In Crosby v. Wadsworth (b) it was decided that contracts for the sale of growing crops of grass and hops came within the fourth section, the ground of decision, which has been recognized in several subsequent cases, being that the purchaser had an immediate exclusive right to the land for a specific period, namely, while the crops were growing to maturity, and until they were harvested. (c) In Parker v. Staniland (d) it was held that a contract ing crops, whether fructus (a) See 1 Wms. Saund. 395, In certain cases, however, it may be the intention of the parties that the purchaser shall have an interest in the land, and not merely an easement of the right to enter the land for the purpose of harvesting and carrying away the subject matter of the sale. See Jones v. Flint, 10 A. & E. 759; 2 Per. & D. 594. (b) 6 East, 602, and Waddington v. Bristow, 2B. & P. 452; and see Jones v. Flint, 10 A. & E. 753; 2 P. & D. 594. (c) See Parker v. Staniland, 11 East, 362; Evans v. Roberts, 5 B. & C. 829; 8 D. & R. 611; Smith v. Surman, 9 B. & C. 561 ; 4 Man. & R. 455; Warwick v. Bruce, 2 M. & Sel. 205; Sainsbury v. Matthews, 4 M. & W. 343; S. C. nom. Stanbury v. Matthews, 7 Dow. 23. (d) 11 East, 36. by the owner of a close cropped with potatoes, to sell them at so much a sack, the defendant to get them out of the ground immediately, was not a contract for any interest in the land, within the fourth section of the statute, the contract being for the sale of a mere chattel, and the land being considered as a warehouse for the potatoes till the defendant could remove them. (a) In Washburn v. Burrows, (b) Rolfe, B. said: "When a sale of growing crops does, and when it does not, confer an interest in land, is often a question of much nicety; but certainly when the owner of the soil sells what is growing on the land, whether natural produce, as timber, grass, or apples, or fructus industriales, as corn, pulse, or the like, on the terms that he is to cut or deliver them to the purchaser, the purchaser acquires 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." (c) In Smith v. Surman, (d) the contract was for the sale of trees still standing, at a certain price per foot. It was held that the contract was within the seventeenth section. Littledale, J. said: "The words in the (fourth) section relate to contracts (for the sale of the fee simple, or of some less interest than the fee) which give the vendee a right to the use of the land for a specific period. If in this case the contract had been for the sale of the trees, with a specific liberty to the vendee to enter the land to (a) See also Cutler v. Pope, 1 Shepl. 337; Warwick v. Bruce, 2 M. & Sel. 205; Sainsbury v. Matthews, 4 M. & W. 343; (b) 1 Exch. 115. (c) And see Dunne v. Ferguson, Hayes, 340. (d) 9 B. & C. 561; 4 Mann, & R. 455. CHAP. III. CHAP. III. Crop not yet sown. cut them, I think it would not have given him an interest in the land within the meaning of the statute. The object of a party who sells timber is, not to give the vendee any interest in his land, but to pass to him an interest in the trees, when they become goods and chattels. Here the vendor was to cut the trees himself. His intention clearly was, not to give the vendee any property in the trees until they were cut, and ceased to be part of the freehold. (a) In the recent case of Marshall v. Green, (b) the facts were very similar, the only distinction being that the trees were to be cut by the purchaser, but the Court did not consider this to be of any weight, and decided that the contract was for the sale of goods. It seems also that a contract for the sale of gravel, stone, or other minerals, to be taken immediately, is within the seventeenth section.(c) Where A agreed to supply B with a quantity of turnipseed, and B agreed to sow it on his own land, and to sell the crop of seed produced therefrom to A at £1 1s. the Winchester bushel; and the seed so produced at the price agreed exceeded in value the sum of £10, it was held that this contract was within the seventeenth section of the statute; "for," said Lord Tenterden, "the thing agreed to be delivered would at the time of delivery be a personal chattel."(d) At one time the question whether the crop was ripe or (a) See the remarks of Bayley, J. on this case in the Earl of Falmouth v. Thomas, 1 C. & M. 105; and of Lord Abinger in Rodwell v. Phillips, 9 M. & W. 505. (b) L. R. C. P. D. 35. (c) Coulton v. Ambler, 13 M. & W. 403; and see Dart. V. & P. 5th ed. 203. (d) Watts v. Friend, 10 B. & C. 446. CHAP. III. not seems to have been considered material. But this is no longer regarded; and it appears also to be immaterial whether the price is to be estimated by the quantity sold, or by the acre; or whether the crop is to ripe or not. be harvested by the vendor or purchaser. (a) Immaterial whether crop Sale of crop before being severed. Dis tinction be tween fructus and fructus Where the contract is for the sale of crops before they are severed from the soil, and which are still to derive nutriment from it, a distinction is drawn between a contract for the sale of fructus naturales; such as growing grass, primæ vesturæ, growing timber, or underwood, or industriales. growing fruit, which is within the fourth section as a contract for an interest in land; and a contract for the sale of fructus industriales, such as growing crops of corn, potatoes, or turnips, not produced spontaneously, but raised by the labour of man, which are seizable by the sheriff under a writ of fieri facias, and pass to the executor and not to the heir, which is within the seventeenth section, as a contract for the sale of goods, wares, and merchandises. The leading case on this point is Evans v. Roberts (b). The agreement was for the sale of a growing crop of potatoes, to be turned up by the plaintiff, the vendor. The action was assumpsit for " crops of potatoes bargained and sold," and it was held that this was not a contract for the sale of any lands, tenements, or hereditaments, or any interest in or concerning them, but a contract only for the sale or delivery of things which (a) Parker v. Staniland, 11 East, 362; Warwick v. Bruce, 2 M. & Sel. 205; Sainsbury v. Matthews, 4 M. & W. 343; S. C. nom. Stanbury v. Matthews, 7 Dowl. 23; Evans v. Roberts, 5 B. & C. 829; 8 D. & R. 611; Hallen v. Runder, 1 C. M. & R. (b) 5 B. & C. 829; 8 D. & R. |