Willard v. Higdon

Boyd, C. J., delivered the opinion of the Court. The appellee rented a farm from David H. Roelkey from April 1st, 1910, to April 1st), 1911, by an agreement in writing which contained various provisions — amongst others that Mr. Roelkey ivas to have one-half of all the wheat, corn, oats, clover seed, timothy seed, rye and hay raised on the farm, which the appellee agreed to deliver to any point within five miles therefrom free of cost to Mr. Roelkey. On December 27th, 1910, Mr. Roelkey agreed to sell the farm to the appellants. At that time the following note was given to him: ⁴⁴⁹ “Knoxville, Md., Dec. 27, 1910. “Ninety days after date we jointly and severally promise to pay to David H. Roelkey five hundred dollars for value received as part payment of purchase of farm known as Locust Grove, containing 284 acres, more or less, except part reserved between two farms, of about two or three acres, more or less, purchase price to he $18,000.00.” That was signed by C. E. Willard, E. H. Willard and M. L. Willard.

On the same- day Mr. Roelkey gave the appellants a receipt as follows: “Knoxville, Md., December 27th, 1910. “Received of O. F. Willard, E. H. Willard and M. L. Willard five hundred dollars in form of note as forfeit on farm known as .Forest Grove, price to be $18,000. “$500. David H. Rokukey/' On March 25th. 1911. Roelkey and wife executed a deed to the appellants for two tráete of land described by courses and distances, which in the aggregate contained 284 acres, more or less, and it seems to be conceded that, the land conveyed by the deed was the- same intended to be sold as referred to in the note and receipt above. There is no such reservation in the deed, but Roelkey claims that at the time of the sale, it was agreed, distinctly but orally that he was to have the half of the wheat crop then growing, to which under the terms of the lease to the appellee he was entitled.

The appellants deny that there was such an agreement and contend that there could he no binding reservation made by parol, as it would he in contradiction of the written agreement and of the deed. Roelkey claims that he positively refused to sell the farm for less than $18,000 and the reservation of the half of the wheat crop, and that when he insisted upon there being inserted in the agreement provisions that the appellee was to remain on the farm and that ho reserved ⁴⁵⁰ the growing wheat crop, Charles F. Willard, who wrote the papers, said: “It is not worth while, it is not like strangers, we have been friends all onr lives, we want only what is right.” He had made a mistake in one of the papers which had to be written over again, and Roelkey claims that he aga.in insisted upon those provisions being inserted, and said his son did not understand the omission, and Willard then turned to the son and, addressing him, said: “Dave, Mr. Higdon is to stay on there and your father reserves the growing wheat crop, is that plain enough to you?” Roelkey claims that the reservations were accordingly omitted at the instance of Willard. The appellee delivered the half of the wheat to a mill for Roelkey, instead of delivering it to the appellants who notified him of their claim to it. The appellants sued him and at first simply had six of the usual common counts in the nari'.j but amended by adding a seventh count, “For money due for the use and occupation of the plaintiffs’ lands in Frederick County, Maryland.” The plaintiff finally abandoned all of the counts in the declaration except the seventh.

There are twelve bills of exception containing rulings as to the admissibility of evidence, and the thirteenth embraces the prayers, — the plaintiffs having offered seven, all of which were rejected excepting the fourth, and the defendant three, the first and second of which were rejected and the third granted. The case resulted in a judgment for the defend'ant, and from that this appeal was taken. As the important question in the case is whether there could be a valid reservation of the wheat crop by parol, notwithstanding the agreement of December 27th, 1910, and the deed in evidence, we will consider that question before referring to the exceptions and prayers separately. Before doing so, however, it will be well to say that we do not understand how the question whether a tenant can deny his landlord’s title is involved in this case.

That was argued at some length orally and in the brief of the appellants, but there can be no difficulty about the law on that subject. If it was ⁴⁵¹ Aalidly agreed between the appellants and Roelkey that the latter was to have the one-half of the wheat crop, it could hardly he contended that the appellee could not defend against this suit by reason of the fact that he is the tenant of the appellants. If, for example, the deed had contained such a reservation, the right of the appellee to defend on the ground that he had delivered the wheat in pursuance of that reservation could not have been questioned, and therefore Ave say that the important question is whether there was a Anilid reserAution of the wheat crop. It cannot be doubted that in this State growing crops, if fructus industriales, such as a crop of wheat, are regarded as chattels and can be sold Avithout complying with the requirements of section 4 of the Statute of Frauds (29 Charles II, Ch. 3).

Purner v. Piercy, 40 Md. 212 ; Wilson v. Fowler, 88 Md. 601 . In this State even a sale of growing trees to he presently cut and removed by the vendee is not. within the operation of that section. Smith v. Bryan, 5 Md. 141 ; Leonard v. Medford, 85 Md. 666 . If prior to the passage of the Uniform Sales Act of 1910 (Ch. 346, p. 272) there could have been any doubt about growing crops being chattels, That statute dispels it.

In section 97 of Article 83, it is declared that, “ ‘Goods’ include all chattels personal other than things in action or money. The term includes emblements, industrial growing crops, and things attached to or forming a part of the land which are agreed to he severed before sale or under the contract of sale.” As that act took effect June 1st, 1910, it is applicable to> this agreement, Avhich was made December 27, 1910. Under the decisions in Eichelberger v. McCauley, 5 H. & J. 213 , and Rentch v. Long, 27 Md. 188 , a sale of a crop not yet thrashed, shucked or gathered was not Avithin the 17th section of Statute of Frauds (29 Charles II, Ch. 3), because Avork and labor being necessary to prepare it for delivery, it was not a sale of goods, wares and merchandise within the meaning of that section, hut that has been changed by the Uniform Sales Act, which reads as follows: ⁴⁵² (1) “A contract to sell or„a sale of any goods or choses in action of the value of fifty dollars or upward shall not be enforceable by action unless the buyer shall accept part of the g'oods or choses in action, so contracted to be sold, or sold and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. (2) “The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured or provided, or fit or ready for delivery, or some act may bo requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business, the provisions of this section shall not apply.

(3) “There is an acceptance of goods within the meaning-of this section when the buyer, either before or after delivery of the goods expressed by words or conduct his assent to becoming tbe owner of those specific goods.” Although sub-section (2) has changed the rule announced by our predecessors, if the alleged agreement as to the crop between the appellants and Mr. Roelkey can be said to amount to a contract to sell or a sale, then the latter is the buyer, and the further question arises- as to whether he had done any of the things which are a compliance with the statute. That must be answered in the affirmative, as Roelkey did actually accept and receive the wheat and he did give something in part payment — indeed in payment in full — as he conveyed the property for which the consideration was the $18,000.00 and the reservation of the wheat crop-, if his contention in that respect be correct. Moreover, section 25 says that a contract to sell or a sale, shall “not be enforceable by action, unless,” etc. Under our decisions a party may defend although the contract cannot be enforced on account of the ⁴⁵³ statute of frauds. Crane v. Gough, 4 Md. 333 ; Webster v. LeCompte, 74 Md. 258 ; see also 29 Am. & Eng.

Ency. of Law, 818, 822. We must therefore consider the question of the validity of a reservation by parol, with the understanding that a growing wheat crop may be treated as a chattel and that the statute of frauds does not stand in the way of the defense in this case of such a reservation. The authorities are not uniform on the subject, but inasmuch as the growing crop can be treated as a chattel, and the owner of the land can undoubtedly sell it as such, we are of the opinion 1lmr it is more reasonable and more in accord with the spirit of the decisions in this State to hold that