Purner v. Piercy

Stewart, J., delivered the opinion of the Court. In the first exception, the defendant, conceding the commission to take testimony to have been correct in other respects, objects to the testimony taken thereunder upon two grounds : 1st. Because, but one of the commissioners acted; and, 2nd, that neither he nor his counsel had notice of the filing of the interrogatories on the part of the plaintiff. He also objects to the admissibility of the parol evidence of the deputy clerk to prove notice to the defendant's attorney.

The 15th section of the 31th Article of the Code, provides for the issuing of a commission by the Courts of law, to take testimony out of the State, in the same manner and form as by a Court of Equity, for similar purpose. Art. 16, sec. 143, provides that one of the commissioners may execute the, commission. The 144th section authorizes the Courts to prescribe rules for the speedy execution and return of commissions. ²²⁰ The Circuit Court for Cecil County has adopted a rule, inserted in the record, upon the subject, which provides for the filing of interrogatories with the cleric, who is required immediately to serve a copy on the adverse party or his counsel, and if counter-interrogatories are not filed within ten days after such service, the commission shall issue. In case the counsel does not reside at the seat of justice, a copy of the interrogatories mailed and addressed to him at his usual residence shall be sufficient.

The deputy-clerk proves that- he served a copy of the interrogatories on the defendant’s attorney the same day they were filed. We are not aware of any reason why his evidence was not admissible, more especially as there is no offer by the defendant .or his attorney to prove that notice was not given. We find no error in the 1st or 2nd exception. The defendant’s 3rd exception is, to the granting of the plaintiff’s prayer —refusal to grant his 3rd and 4th prayers as offered, and to the Court’s substituted instructions therefor, and rerusal of his 2nd and 6th prayers.

The defendant’s 5th prayer, that there was no evidence in the case authorizing a recovery for the plaintiff on the first four counts in the declaration, was conceded, and as maintained by the defendant, constituted the proposition contained therein as settled law in the trial of the case. Those counts were not further to be considered, and therefore, according to the conceded law, the plaintiff could not recover upon the count for an account stated, being his 4th count. There then remained but the 5th count, upon which the plaintiff could recover, which alleged the purchase from the plaintiff by the defendant of the fruit growing in his peach orchard, and that the defendant took possession thereof and carried it away. We think the jury were clearly and correctly instructed by the granting of the plaintiff’s prayer.

There was no evidence to sustain the ²²¹ defendant’s 2nd prayer. His 3rd and 4th. prayers were substantially and concisely granted by the substituted instruction given by the Court. The 6th prayer, besides being too general under the settled practice of the State, was properly refused, because there was evidence legally sufficient to entitle the plaintiff to recover. But tire defendant’s counsel insists that the contract was invalid under the operation of the 4th section of the Statute of Frauds.

That section provides that no action shall be brought to charge any person upon any contract or sale of lands, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing, &c. Agreement and contract seem to be considered in the section of the same purport, and the appellant’s counsel insists the contract or agreement relied upon here to charge the defendant, is for lands, or some interest in or concerning them, and therefore not to be established by parol proof. It would be giving to the Statute a very latitudinal1 ian construction to bring the case in question within the mischief designed to be avoided by the Statute. We have been referred to no case in this State, and have found none to sauction such doctrine.

The cases of Ellicott vs. Peterson’s Ex’ crs, 4 Md., 476 , and Smith vs. Bryan, 5 Md., 141 , are against such enlarged construction. The first case, in regard to agreements to be performed within a year, decides that a complete performance by one of the parties within the year is sufficient compliance with the requirements of the Statute. The latter case substantially holds that the sale of standing trees, under the circumstances of that case, was a sale of goods, and conformed to the demands of the 17th section, and refers with approval to sec. 271 of Greenleaf’s Evidence. ²²² There is certainly some conflict in the adjudged cases in regard to the interpretation of contracts for the sale of crops and the natural products growing upon land; an d it is difficult to deduce therefrom any clearly defined rule upon the subject.- Mr. Alexander, in his admirable treatise on the British Statutes in force here, has carefully referred to numerous cases, both English and American, and deduced therefrom the distinctions which seemed to have prevailed in regard to the operation of the Statute in relation to growing crops and other produce of land. At page 532, et seq., contracts, as to the natural product of the land, are distinguished from such as relate to crops raised by the industry of man, and yielding an annual profit.

A distinction is also noted between the natural produce when severed by the seller or by the buyer. He refers to the recent work of Benjamin on Sales, 84, et seq., for a fuller discussion. Mr. Benjamin, at p. 99, remarks, from all that precedes, the law on the subject of the sale of growing crops, may be summed up in the following proposition, viz: growing-crops, if fructus industriales, are chattels, and an agreement