United Society v. Brooks

Knowlton, J. We are to determine in this case whether the writing declared on passed a title to the defendant in the trees growing upon the land, or whether it was an executory • agreement for the sale of chattels, to take effect after they should appear in the form of timber, lumber, and bark. [415] An oral contract purporting to be "a present salé of growing wood and timber, with a privilege of entering upon the land to remove it, is held not to be within the statute of frauds, but a sale of chattels, which changes the ownership as fast as the trees are severed from the real estate under the license granted to the purchaser. Claflin v. Carpenter, 4 Met. 583. Giles v. Simonds, 15 Gray, 441. Drake v. Wells, 11 Allen, 141. If a contract for the sale of growing wood and timber is in the form required for a conveyance of real property, it becomes a question of construction, upon the language of the whole instrument, whether it was intended immediately to pass a title to an interest in land, or whether by its terms it is executory. White v. Foster, 102 Mass. 375. In the case at bar, the property was in Vermont, and the parties entered into a' contract, under seal, which was not signed in the presence of two witnesses, or acknowledged, or recorded, as was required by the law of that State, to make a conveyance of an interest in land good against others than the grantor and his heirs. By the first language of stipulation in the instrument, the plaintiff agreed to sell, and the defendant agreed to buy, “all the hemlock bark, and the hemlock and spruce timber, now standing,” &c. In the next sentence the defendant agreed “ to purchase, take, cut, and remove ” the timber and bark “ within four years ” from the date of the agreement. Then followed provisions as to the quantity to be cut in each year, the prices to be paid per cord for the bark, and per thousand for the hemlock lumber and for the spruce timber, and the times for payments. Measurements were to be made by the plaintiff or its agent, at places specified in the contract, with notice to the defendant in all cases to enable him to be present at them. Other details for proceeding in execution of the contract were inserted, with a stipulation in these words, “ It is also further agreed that all spruce and hemlock trees, which are down, or which may hereafter fall, which will make fair merchantable lumber, shall be cut, removed, measured, and paid for by said Brooks.” The language of the writing was “agrees to sell,” and “ agrees to buy,” not “ sells,” and “ buys.” In the second sentence four years were given in which to perform the agreement “ to purchase,” [416] as well as the agreement “ to take, cut, and remove ” the timber. The instrument in all its parts seemed to look to future action and future results, rather than to a present change of title. The property to be transferred had no existence in the form in which it was referred to in the contract. It was called bark, lumber, and timber, and was to be first put into that form, and then measured and paid for, at certain prices by the cord and by the thousand. The general rule as to sales of personal property is, “ that where any operation, as surveying, weighing, measuring, counting, or the like, remains to be performed, in order to ascertain the price, or the quantity, or the parcel to be delivered, the contract is incomplete, and the property does not pass.” Mason v. Thompson, 18 Pick. 305. Interpreting this instrument in the light of all its provisions, we find it to have been, not an executed contract of sale, but executory. It follows, that, so long as the timber and bark remained standing, no property in it passed under the contract, and that the value of the wood and timber left uncut upon the lot should not have been included in the damages awarded to the plaintiff at the trial. Upon the facts there presented, the plaintiff should have been permitted to recover, as damages for the non-fulfilment of the defendant’s contract, $300, and interest from the date of the writ. ¡Exceptions sustained.