Johnson v. Wallin

Winborne, J. Plaintiff’s exception to the refusal of the court to admit parol evidence tending to support the allegations of -his complaint as to the alleged agreement upon which this action is based is well taken. While in this State it is provided by statute, G. S., 22-2, that “all contracts to sell and convey lands ... or any interest in or concerning them . . . shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, etc.,” and while it may be taken as settled that growing trees are a part of the land, and that a contract for the sale thereof is considered as within the meaning and intent of the statute, the alleged contract between the parties to the present action is not one for the sale of growing timber. It is a contract of employment for the conversion of trees growing on defendant’s land into logs and for manufacture of the logs into lumber for the primary benefit of defendant to the extent of 6,000 feet of lumber, for which plaintiff was to be compensated in logs. It does not contemplate that there should be a transfer of any title to or interest in the trees as they stood upon the land, which is essential to bring the agreement within the purview of the statute. The case of Ives v. R. R., 142 N. C., 131, 55 S. E., 74, is on all-fours with the case in hand. The opinion of this Court by Walker, J., fully discusses the subject. See also Sumner v. Lumber Co., 175 N. C., 654, 96 S. E., 97, and Walston v. Lowry, 212 N. C., 23, 192 S. E., 877. [672] Hence, we bold tbat plaintiff is entitled to an opportunity to make out bis case on parol evidence, and for error in refusing to admit sucb evidence, tbe judgment as of nonsuit is Reversed.