Cutler v. Pope

The action was continued nisi, and the opinion of the Court delivered, afterwards, as drawn up by Weston C. J. As part of the grass was standing, when it was sold by Scott to tbe plaintiff, and that sale was by parol, an objection is interposed, that this was an interest in land, and not a mere personal chattel, and could not therefore consistently with the statute of frauds, bo sold without an instrument in writing. The counsel for the defendant relies upon the case of Crosby v. Wadsworth, 6 East, 602, which was upon a sale of grass then growing, which was adjudged to be within the statute of frauds. This did not accord with an anonymous case, reported in 1 Lord Raymond, 182, in which Treby C. J. and Powell J. were of opinion that growing timber might be sold by parol. And in Whipple v. Foot, 2 Johns. 418, it was decided that wheat or corn growing is a chattel, and may be taken in execution and sold. The case of Crosby v. Wadsworth was questioned in Frear v. Hardenburgh, 5 Johns. R. 272. [380] Bat in Parker v. Staniland, 11 East, 362, the true ground, upon which that case turned, is stated and commented upon, namely, that it was for the sale of a crop of growing grass, for tbe continued growth and maturity of whieh, a certain interest in the land was necessary ; a' case however, which Lord Elleribo-rough said he should be unwilling to extend. That which was then under consideration, was the sale of a crop of potatoes, then ripe and to be immediately dug and taken from the ground; and it was held to pass no interest in the land; and that the sale might therefore be made by parol. And we are of opinion, that grass already grown and in a condition to be cut, as the grass in question was, might be sold by parol, and that there is no objection to such sale, arising from the statute of frauds. It appears from the testimony of Mr. Talbot, the agent of the owner of the land, that he sold the grass to Scott, and that without any lien on the hay for the price. Prompt payment was not a condition of the sale; and it is evident from the testimony, that it was neither exacted nor expected. Scott then being a purchaser of the grass, from the agent of the owner, although remaining his debtor therefor, had a right to sell it to the plaintiff. It appears, that the consideration for which Scott sold was, that the plaintiff should do certain labor for him, equal to what he had done upon the grass sold, and that he should pay to Lemist the price for which he purchased. .Thereupon the plaintiff proceeded to make the hay, and subsequently removed it. So far as it regarded the sale of the hay, this was a contract executed. The price was the plaintiff’s promise to labor for Scott and to pay Lemist. Scott reserved no lien, and the property in the hay was transferred to the plaintiff. This took place before the agency of the defendant commenced. The hay was the plaintiff’s property ; and the defendant has shown no justification for taking it away. Judgment for the plaintiff.