Ives v. Railroad

*134 Walker, T., after stating tbe case: It may now 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 the Statute of Frauds, secs. 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; Mizell v. Burnett, 49 N. C., 249; Moving v. Ward, 50 N. C., 272; Plynt v. Conrad, 61 N. C., 190; Green v. Railroad, 73 N. C., 524; Mizzell v. Ruffin, 118 N. C., 69. The question was directly presented and decided in Drake v. Howell, 133 N. C., 162, and Hawkins v. Lumber Co., 139 N. C., 160. 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 cordwood, and, in the other, for the conversion of trees growing on the defendant’s land into cordwood 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. and Eng. Enc. (2 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 f prima veslura), such as timber, *135 grass, herbage or apples, or the annual fruits of industry (fructus industriales'), as corn, pulse, or tbe like, on tbe terms that be (tbe vendor) is to cut or sever them from tbe land and then deliver them to tbe purchaser, tbe latter acquires thereby no interest in tbe soil, “which in such case is only in tbe nature of a warehouse for what is to come to him merely as a personal chattel.” It was ruled in tbe leading case of Smith v. Surman, 9 B. & C., 561, that where the owner of land agreed with another to cut timber from bis own land and deliver tbe trees, when cut down or severed from tbe freehold, to tbe latter for a stipulated price, tbe statute did not apply; and tbe particular agreement, in that case, being construed to have tbe said effect in law, was therefore held not to be within tbe statute. And tbe converse of tbe proposition is equally true, that where one contracts with another to cut timber from bis 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, 356; Scales v. Wiley, 68 Vt., 39; Green v. Armstrong, 1 Denio, 550; Boyce v. Washburn, 4 Hun., 192; 2 Reed on Statute of Frauds, sec. Ill. Tbe courts ' properly said in the cases cited that to give tbe statute tbe 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 tbe validity of a contract by tbe owner of a peat-bed or a sand-bank to deliver even a load from it; and, we may add, it would jeopardize tbe rights of every woodman who for hire fells trees in tbe forest. The construction is utterly inadmissible. It has been said in some cases, following a dictum of Little-dale, 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 *136 are standing, to the vendee, with a stipulation that they must be cut and removed at once, or within a reasonable time, the trees will be regarded as chattels, and the contract will therefore not be within the statute: and this because of the shortness of the time given for cutting and removing them. Marshall v. Green, L. R., I. C. P. Div., 35. This distinction is scholastic, if not arbitrary. It partakes more of formalism than it does of sound logic and cogent argument. We would not cite this class of decisions in support of our ruling in this case, as we cannot assent to the reasoning and conclusion of the courts in them. While they may seem to be in point, they really are not, as there the trees themselves, as standing timber, were sold to the vendee. Here they were not. The question as to whether the statute applies should not be determined by the mere accident that time is given to sever the trees or other growth, but by the nature of the thing, as being or not being a part of the freehold. This is the better reason and ground for decision, and it was so considered by Lord Ellenborough in Crosby v. Wadsworth, 6 East, 602, wherein the Court held an agreement, that the plaintiff should enter the defendants’ land and cut and carry away a crop of grass, to be for .an interest in land, because “conferring an exclusive right to the vesture of the soil during a limited time”; and to the same effect is Scorell v. Boxall and Killmore v. Howleft , already cited by us, and numerous other cases decided by courts of high authority. 28 A. and E. Enc. (2 Ed.), 540, and note 6; 29 ibid., 889, and note 5, where the authorities are collected. At any rate, the cases which hold that as the time fixed for cutting and removal shows whether or not it was intended that the trees or other growth should receive further nutrition from the soil, it should control in the decision of the question, are at variance with the reason assigned by this Court for its ruling that contracts for the sale of standing trees .are within the statute. What is the law, in this respect, *137 with, regard to the fruits of industry (fructus industriales), is not now before us. Flynt v. Conrad, supra. Our opinion is therefore against what appears to be the main contention of the defendant, that the contract is void because it was not in writing; for this is a contract not for the sale of trees, but merely for the cutting of them into eordwood. It is simply .a contract for employment and not for any interest in the article upon which the labor is to be bestowed. This is the practical view and accords with the intention of the parties. The defendant is not in a position to except to the ruling of the Court sustaining the objection to the juror. It had not exhausted its peremptory challenges, and, so far as appears, the jury chosen to try the case constituted a panel entirely acceptable to both parties. The purposes of justice and the ends of the law are equally attained when a fair and impartial trial has been secured to the complaining party. The right of challenge confers not a right to select, but a right only to reject. This is so in theory and it should be so in practice. State v. Gooch, 94 N. C., 987; State v. Hensley, 94 N. C., 1021; State v. Jones, 97 N. C., 469; State v. Freeman, 100 N. C., 429; State v. Pritchett, 106 N. C., 667; State v. Brogden, 111 N. C., 656; State v. McDowell, 123 N. C., 764. If an unobjectionable jury was secured, how does it concern the defendant that .a juror was improperly rejected, if such was the case, which we need not decide ? The question in the form here presented was decided against the defendant’s contention in State v. Arthur, 13 N. C., 217. The testimony of the witness J. A. Meadows w.as competent and also relevant to the issues being tried. The fact that he loaned the plaintiff money to enable him to fulfill his contract was surely some evidence bearing upon the issue as to the plaintiff’s ability and readiness to perform his part of the agreement. Some of this money he had already used and a balance of $7,300 still remained with which he expected to *138 complete the work. We are at a loss to know why this testimony was not relevant. The fact, if it be one, that its effect would be to make Meadows the real plaintiff, is not any legal objection to it. The defendant objected to evidence of the conversation between plaintiff, Bryan and Carlyle, as to the delivery of the 1,140 cords, in which Bryan agreed that he need not deliver it on the right-of-way and ordered that it should be paid for as it then stood. This is not the declaration, after the fact, of an agent, but merely the relation of what Bryan, as chief executive officer of the defendant — that is, its president, and, too, its agent, specially deputed to make the contract and to see to its proper execution — had said and done-in the course of his employment. It was a part of the ■ very transaction involved in this dispute, and a statement made by Bryan while acting for the defendant, and dum fervet opus. Smith v. Railroad, 68 N. C., 107, and the other like cases do not therefore apply. The defendant’s counsel further contend that as the plaintiff had delivered only 600 of the 1,140 cords on the right-of-way, leaving 540 undelivered, and as he had delivered only one other lot of 748 cords (exclusive of the 5,090 cords), making 1,348 cords so delivered, and as the defendant paid for 1,140 cords, the plaintiff is entitled to recover only the difference, or the value of 248 cords. The Court charged the jury fully with reference to this matter, and told them that the value of the 248 cords was the measure of the plaintiff’s recovery, “if they should find the facts to be according to the defendant’s contention.” The Court,- we think, went to the extreme limit in favor of the defendant. The defendant’s prayer excluded entirely-from the’ consideration of the jury the evidence introduced by the plaintiff to show that the defendant had waived a delivery on the right-of-way and that it had in several respects delib *139 erately .broken the contract. The jury have found as a fact from the evidence that there was no valid reason for refusing to receive the entire lot of wood and providing a proper place for its storage. "We were told on the argument, and it is so stated in one of the briefs, though it does not appear in the record, that after the lease was made the defendant no longer needed the wood, as the engines were changed from wood to coal burners. This, if it be true, was of course no excuse for the breach, nor does it clearly appear that there was any other good reason for refusing to receive the wood or for breaking the contract in any other respect, the former president of the defendant company having testified that the wood would have been accepted and paid for and the contract carried out if he had continued in office, and the jury having adopted the plaintiffs version of the facts. We refer to these matters to show that in submitting the case to the jury, the Court has given the defendant the benefit of every possible contention in respect to them, and this is true with reference to all the questions involved. The other exceptions of the defendant are numerous, but they are not of such a nature as to require .any extended discussion of them. They relate, in one form or another, to the refusal of the Court to give more explicit instructions and to explain the relative rights and obligations of the parties under the contract. It has been so repeatedly held by this Court, that if a party desires more definite instructions he must malee a special request for them, that the citation of authority to support the rule is hardly required. Simmons v. Davenport, 140 N. C., 407. But it must not be inferred that we think the criticism of the charge is warranted, for we are not of that opinion. The instructions were clear and comprehensive, embracing every possible phase of the case which was material and should have been submitted to the jury. *140 We do not doubt that tbe jury, which, the parties appear to have regarded as fair and intelligent, got a perfect understanding of the facts and the law as explained by his Honor. We have discussed the exceptions chiefly relied on in the argument before us. The others are, we think, without merit. The case has been fairly and correctly tried and the defendant must abide by the result. N O' Error.