Carnahan v. Terrall Bros.

HART, J., (after stating the facts). In order to defeat the action against him the defendant interposed a plea of the statute of frauds. The court erred in not directing a verdict for the defendant at his request on the ground that there had not been the requisite part performance to take the case qut of the operation of the statute of frauds. A sale of growing trees is a sale of an interest in land. Graysonia-Nashville Lbr. Co. v. Saline D. Co., 118 Ark. 192, and cases cited. Consequently a contract for the sale of standing timber is within the meaning of the statute of frauds and must be evidenced by a contract in writing. Ives v. Atlantic and North Carolina Rd. Co. (N. C.)., 9 A. & E. Ann. Cas. 189, and case note at 192; Hurley v. Hurley (Va.), 18 A. & E. Ann. Cas. 968, and case note at 971, and France v. Deep River Logging Co. (Wash.), Ann. Cas. 1916, A. 238, and case note at 243. In conformity with this principle of law, this court has held that the doctrine of part performance applicable to oral contracts for the sale of land applies with equal force to an oral contract for the sale of standing timber, Arkadelphia Lumber Co. v. Thornton, 83 Ark. 403; Robinson v. Wynne, 97 Ark. 366; Davis v. Martin Stave Co., 113 Ark. 325, and Bonner v. Kimball-Lacy Lbr. Co., 114 Ark. 42. In these cases it was held that the payment of the purchase money for the timber by the purchaser and the taking possession of the timber by him met every requirement of our decisions as to the part performance of a parol contract for the sale of land or an interest therein necessary to give the purchaser the right to specific performance. The principle of law applicable to cases of this sort is well established, but the application to a given state of facts is sometimes difficult. In all the cases cited above, the purchaser in pursuance of the contract paid the purchase money and went into the exclusive possession of all of the timber purchased by him. Here the facts are essentially different. The timber was cut and removed from the land for the purpose of making posts and payment of the purchase price was made as each car load of posts was gotten out and sold. The posts were scattered over thirty thousand acres of land. The purchaser did not know the boundaries of the land, nor the parts thereof on which the catalpa timber was growing. The vendor furnished a man to show the purchaser where the catalpa timber was situated and where to cut it. Hence it will be readily seen that the purchaser did not have the exclusive, open and visible possession of the land on which the timber was situated to constitute the requisite part performance of the contract to take it out of the operation of the statute of frauds. It follows that under the facts as they appear from the’record, the court erred in not sustaining the defendant’s plea of the statute of frauds and in not directing a verdict in his favor. For that error the judgment must be reversed and the cause will be remanded for a new trial.