Smith v. Bryan

Le Grand, C. J., delivered the opinion of this court. This is an action of assumpsit, instituted by the appellant to recover from the appellee the value of certain trees standing on the land of the latter. It appears from the evidence in the record, that in the year 1849, the appellee, by a written contract of sale, sold to the appellant certain trees standing on the land of the former, and that in pursuance of this contract the appellant cut down and removed a portion of the trees so purchased. It also appears that in the year 1850, in the presence of the appellee, the appellant said to the witness Larrimore, “I have sold to Mr. Bryan all the balance of the trees standing in the wood, which will girt five feet and upwards, for three dollars per tree, to which the defendant replied, ‘yes,’ that is the bargain.” It is on this oral contract the action is brought, the declaration containing two counts, one specially on the contract, and the other for the value of the trees.

It does not appear the appellee ever cut down any of the trees or exercised any control over their disposition. It does appear, however, from the testimony of the witness Tilghman, that in the year 1851, he, in company with another person, called upon the appellee “and informed him that they were going into his wood, at the instance of the plaintiff, to measure the trees, and asked the defendant to go along with them, which he (defendant) refused, saying he would have nothing to rio with it.” On this state of facts the plaintiff and defendant each offered three prayers to the court; those of the defendants were granted, and those on behalf of the plaintiff were ¹⁵¹ rejected. This disposition by the court below of the several propositions, we think, was erroneous. The prayers of the defendant were all based on the idea that the contract proved was within the statute of frauds, and as it was not evidenced by anything in writing, or the trees delivered to or accepted by the defendant, that there could be no recovery.

Those of the plaintiff present the theory, that