Page:Harvard Law Review Volume 8.djvu/388

372 HARVARD LA IV REVIEW. cient. The action was not maintained. In Byassee v. Reese,^ the oral sale was held good even as against a subsequent grantee of the land without notice of the sale, the trees, however, having been already selected and marked by the buyer. This is the very strongest effect that can be given to such an oral sale, and may perhaps have gone too far in that direction. Smith V. Bryan ^ (often cited in favor of the oral contract) does not really add much strength to that view. There the owner of land sold by writing (but apparently not under seal) a quantity of oak and pine trees then standing on his land, for $r,200, with two years to remove them. The buyer cut and carried away some of the trees, and then orally resold to the owner of the land those uncut, which he refused to pay for; and in a suit for the price the Court held that the plaintiff could recover. See also Green v. North Carolina Railroad Co.^ Clearly so ; the buyer could hardly expect to keep his trees and his money too. A statute that per- mitted such results would be a statute of frauds indeed ! Perhaps the most important recent case on this subject is that of Marshall v. Green.* The plaintiff on the 27th of February orally sold the defendant twenty-two standing trees, " to be got away as soon as possible." On the 2d of March the defendant cut six of the trees, when the plaintiff countermanded the sale, demanding an alteration of the terms. The defendant, notwithstanding, pro- ceeded to cut the remaining trees on the 3d and 4th of March, and carried them all away. Whereupon the plaintiff brought an action in one count for trespass to the land, and a second count for trover. He was not allowed to recover on either count, because the oral sale was held valid and not within the Statute, — Coleridge, J., say- ing: " If the matter were res Integra, I should be inclined to think there was much to be said for Littledale's, J., view, that the words of the Statute were never meant to apply to such a matter as this at all, but only referred to such interests as are known to convey- ancers. It is, however, too late now to maintain this view, inas- much as there are a great number of decisions which proceed on the opposite view. It is clear on the decisions that there are cer- tain natural growths which, under certain circumstances, have been held to be within the words of the section, and a contract with re- spect to which must therefore be in writing. The question then is. 1 4 Met. (Ky ) 372 (1863). » 73 N. C. 524 (1875) ! Tea! v. Auty, 2 Br. & B. 99. 2 5 Md. 141 (1853). * I C. P. Div. 35 (1875).