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property,' either of which would include shares of stock and the like.40 Even where the statute reads, “goods, wares and merchandises,” the American courts tend to hold that so-called intangible property is included, although there is not entire harmony. In Sprague v. Hosie,41 the court held that savings bank stock was goods, wares or merchandise, saying, “It must be admitted that at common law shares of an incorporated company occupied much the same position as promissory notes and other mere choses in action.

Such shares have, however, come to be subjects of common barter and sale, are usually evidenced by certificates which, in the absence of statute provisions, operate by assignment and delivery to transfer title to the shares as between the parties. They are in this state by statute subject to levy and sale or execution. In many other respects they are treated as something more than mere choses in action. contracts for the sale and delivery of shares of stock are subject to the mischief aimed at by the statute must be admitted. We are of the opinion that reason and the weight of authority favor the conclusion that shares of stock in an incorporated company, the shares having been issued, are goods within the meaning of the statute of frauds. It follows that the parole contract for their sale was invalid."942

* That

40-Franklin v. Matoa Gold Mining Co., 158 Fed. 941, 16 L. R. A. (n. s.) 381; So. Life Ins. Co. v. Cole, 4 Fla. 359.

41–155 Mich. 30, 19 L. R. A. (n. s.) 874.

42—Citing, Tisdale v. Harris, 20 Pick. (Mass.) 9; Boardman v. Cutter, 128 Mass. 388; North v. Forest, 15 Conn. 400; Pray v. Mitchell, 60 Me. 430; Spear v. Bach, 82 Wis. 192; Johnson v. Mulvy, 51 N. Y. 634.

“The doctrine that a contract for the sale of corporate stock is one for the sale of goods, wares and

merchandise, within the Statute of Fraud is almost unanimously recognized by the courts of this country", note in 19 L. R. A. (n. s.) 874, citing many cases. See also, Stifft v. Stiewel, 91 Ark. 445; 18 Ann. Cas. 597; Russell v. Betts, 107 Ark. 629; Korrer v. Madden, 152 Wis. 646; Snowstorm Co. V. Johnson, 186 Fed. 745; Hewson v. Peterman Mfg. Co., 76 Wash. 600, 51 L. R. A. (n. 8.) 398; Nichols v. Clark, 81 N. Y. S. 262; Laundry Co. v. Whitmore, 92 O. S. 44.

But shares are not "goods," Rog. ers v. Burr, 105 Ga. 432, 70 Am. St. 47—Mayor V. Town of Harri. son, 71 N. J. L. 69; Canavan v. City of Mechanicville, 229 N. Y. 473, 128 N. E. 882.

A contract by a corporation to sell its own stock was held a contract for the sale of goods, in Hewson v. Peterman Mfg. Co.48

Contracts of subscription for corporate stocks to be issued have been held not within the Statute on the ground, not that stock was not “goods," but that the contract was not one of “sale." 44 The transfer of a promissory note has been held to be a sale of “goods."145 So also a contract to assign a debt.46

-Water, Ice.-A contract to supply water has been held a sale of goods, 47 and ice, whether cut or uncut, is personalty.

-Growing Crops.-Growing crops are in many respects treated as a part of the land by which they are produced and they have been held not to be within the meaning of a statute requiring manual delivery of goods and chattels as against creditors. But if they are crops which, although the product of the soil, are also the result of cultivation and annual industry, they are generally held to be personal property so far as to come within the meaning of the 17th section of the Statute,51

50

Rep. 50; Webb v. Baltimore, etc.,
R. R. Co., 77 Md. 92; 39 Am. St.
Rep. 396.

43—76 Wash. 600, 51 L. R. A. (n. 8.) 398.

44—Gadsden v. Lance, 1 McMul. len's Eq. (S. C.) 87, 37 Am. Dec. 548.

45–Baldwin v. Williams, 3 Metc. (Mass.) 365.

46–French v. Schoonmaker, 69 N. J. L. 6.

49—They pass, though not specifically mentioned, by a deed to the land. Kammrath v. Kidd, 89 Minn. 380, 99 Am. St. 603; Gibbons v. Dillingham, 10 Ark. 9; Turner v. Cool, 23 Ind. 56; Smith v. Leighton, 38 Kan. 544; Wooton v. White, 90 Md. 64; Jones v. Adams, 37 Ore. 473; McIlvain v. Harris, 20 Mo. 457.

Contra, Aldrich Bank of Ohiowa, 64 Neb. 276, 97 Am. St. 643.

48-Higgins v. Kusterer, 41 Mich. 318, 32 Am. Rep. 160.

50-Bernal v. Havious, 17 Cal. 541, 79 Am. Dec. 147; Davis v. McFarlane, 37 Cal. 634, 99 Am. Dec. 340.

51—Mighell v. Dougherty, 86 la.

v.

-Trees, etc.—Growing things, such as trees and grass, which are naturally produced by the soil, and things which by attachment have become legally part of the soil, are the subject of very much confusion in the cases. Section 4 of the Statute of Frauds requires sales of land, or of an interest in land, to be in writing; so that growing things are necessarily covered by one section or the other. The two sections do differ, however, in their requirements; the chief distinction being that under section 17 a writing is not necessary if there has been payment of part of the price, or if part of the goods have been received and accepted. Section 4 applies to every contract; section 17 only to those involving a certain value. It therefore makes a material difference whether the contract comes under one section or the other.

In respect to matters other than the Statute of Frauds trees, grass and fixtures are considered as real estate so long as they are a part of the land—that is to say, while they are still growing in or legally attached to the soil. But when severed from the soil they at once become personal property in and of themselves. Trees and grass are subjects of sale irrespective of the land, whether they are still growing in it or not.52

Logically, therefore, a sale of trees, or grass, would seem to be a sale of real estate, or a sale of personal property, according as it contemplates a transfer of title to the trees before or after severance. That is, a trans

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fer of title in unsevered trees should properly be a sale of a part of the realty; a transfer of title which is not to take place until after the trees have been severed, a sale of personalty. The fact that at the time of making the contract the trees are uncut should not logically determine the character of the contract. A sale of false teeth to be made is in no sense a sale of the porcelain and rubber out of which they are to be made; it is a sale of the teeth, or else a mere contract for work and labor. So, a contract for the transfer of title to severed trees is not properly a contract for the sale of growing trees out of which the severed trees are to be made.

The whole matter, however, is further complicated by a preliminary inquiry. Does the Statute, in speaking of contracts for the sale of personalty, mean the sale of that which is personalty at the time the contract is entered into, or does it mean the sale of that which will be personalty at the time the title is passed? There is no definite answer to this in the decisions. The broadest analogies indicate the latter alternative. But, at least, an understanding of this problem is a help in understanding the decisions.

The intention of the parties as to whether there should vest in the buyer enforcible legal rights in and to the trees before they are cut or after they are cut, should be determinative of whether they have contemplated giving the buyer an interest in real property or in personal property. And the intention of the parties in this respect would seem to be indicated by whether the buyer is expected to enter and cut the trees—in which case they must have contemplated that he should have rights in the growing trees—or whether the seller is to cut them before the buyer can act in regard to them.

There is some support for this theoretical test in the decisions—although it is nowhere expressed—but not a great deal. On the other hand, a distinction, or test, occasionally expressed, but not more precisely followed, is

that if the contract contemplates an immediate severance of the trees it is a sale of personal property, and covered by the 17th section of the Statute, while if it contemplates that the trees shall be left to grow still further it is a sale of an interest in realty.

The truth is that courts have neither expressed nor intuitively followed any consistent rule in regard to such contracts. As one court expresses the matter, “Whether the sale of growing trees is the sale of an interest in or concerning land has long been a much controverted subject in the courts of England, as well as in the courts of the several states of the Union. The question has been differently decided in different jurisdictions, and by different courts, or at different times by the same court within the same jurisdiction. The courts of England particularly have varied widely in their holdings on the

subject. '958

.

63-Hirth v. Graham, 50 O. S. 57, 40 Am. St. 641. No attempt is made here to cite the holdings of particular states, but only a few representative ones on either side. Held, contract for an interest in land: Seymour v. Cuchway, 100 Wis. 580, 69 Am. St. 957, buyer to cut, but no emphasis laid on that fact; Hirth v. Graham, 50 O. S. 57, 40 Am. St. 641, buyer to cut; Owens v. Lewis, 46 Ind. 488, 15 Am. Rep. 295, buyer to cut; Cool v. Peters, etc. Co., 87 Ind. 531, buy. er to cut; Slocum y. Seymour, 36 N. J. L. 138, 13 Am. Rep. 432, buyer to cut; Kingsley v. Holbrook, 45 N. H. 313, id.; Harrell v. Miller, 35 Miss. 700, 72 Am. Dec. 154, id.; Mizell v. Burnett, 4 Jones (N. C.) 249, 69 Am. Dec. 744, id.; Fluharty V. Mills, 49 W. Va. 446, id.; Ala. Mineral Land Co. v. Jackson, 121 Ala. 172, 77 Am. St. 46.

Held not an interest in land:

Emerson v. Shores, 95 Me. 237, 85 Am. St. 404, buyer was to cut; Marshall v. Green, 1 C. P. Div. 35, id.; White v. Foster, 102 Mass. 378, unless by deed; Ryasse v. Reese, 4 Metc. (Mass.) 372, 83 Am. Dec. 481, because “in contemplation of immediate separation" by the buyer; Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104, buyer to cut; Leonard v. Medford, 85 Md. 666, 37 L. R. A. 449, on ground of immediate separation by buyer; Robbins v. Farwell, 193 Pa. 37, idem; Fish v. Capwell, 18 R. I. 667, 49 Am. St. 807; Turner v. Planter's Lumber Co., 92 Miss. 767, 131 Am. St. 552, seller to cut; Kill. more v. Howlett, 48 N. Y. S. 569, seller to cut.

Sale of grass, held interest in land: Smith v. Leighton, 39 Kan. 544, 5 Am. St. 778, buyer to cut; Ross v. Cook, 71 Kan. 117, buyer to cut; Kirkeby V. Erickson, 90

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