that an agreement to make a chariot was not within the statute, which he said related only to contracts in which the seller was to deliver the goods immediately. In Clayton v. Andrews (a), in 1767, the King's Bench confirmed this case, and held that a contract to deliver wheat (then unthrashed) in a month from the time of the agreement was not within the statute. In Groves v. Buck (b), in 1814, the King's Bench decided that an agreement to purchase a quantity of oak pins, not yet cut out of the slab, was not within the statute. The principle of these cases, decided by great Judges, including Pratt, C. J., Lord Mansfield, and Lord Ellenborough, seems to have been either that the word “bargain in the statute must be taken in the strict technical sense, so as to exclude all executory contracts not amounting to a “bargain "and sale," or else that, as the statute said the contract was to be good if the buyer "accepted and actually received" part of the goods, it could only be meant to apply to contracts where it was possible to accept and receive part of the goods. It is clear that the buyer could neither accept nor receive the chariot before it was built, the corn before it was thrashed, or the oak pins before they were cut out. On the other hand, in Rondeau v. Wyatt (c), in 1792, the Court of Common Pleas decided, after taking time to consider, that a contract to supply goods on board ship was within the statute, as it was a contract for a sale, though a future one; and in Garbutt v. Watson (d), in 1822, the King's Bench decided the same point where the goods were flour yet unground. In both these cases the Court said that Towers v. Osborne (e) might, perhaps, be supported as being a contract, not for a sale, but for work, labour, and materials; but subsequently in Atkinson v. Bell (f), the King's Bench held that (a) Clayton v. Andrews, 4 Burr. 2101. it was not so. In Garbutt v. Watson (a), Clayton v. Andrews (b) was expressly overruled. It seems impossible to reconcile these decisions, but the legislature in 1828, by 9 Geo. 4, c. 14, s. 7 (Lord Tenterden's Act), put an end to the difficulty by enacting, that the provisions of the Statute of Frauds should apply to agreements to sell as well as to [bargains and] sales, and the 7th section of Lord Tenterden's Act is substantially incorporated in section 4 (2) of the Sale of Goods Act. In Harman v. Reeve (c), in 1856, Jervis, C. J., pointed out that in 9 Geo. 4 the word "value" was used, instead of the word "price," as in the 17th section, and that as the statutes must be construed together, the 17th section must be read as if it contained the word "value," and this distinction is maintained in section 4 (1) of the Sale of Goods Act. The Sale of Goods Act (section 62) defines "goods" as including all chattels personal other than things in action and money (and in Scotland all corporeal moveables except money), emblements (industrial growing crops) and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. Prior to the Sale of Goods Act the question frequently arose whether a contract for the sale of fructus naturales, as distinct from fructus industriales or emblements, was within the 17th section of the Statute of Frauds. It seems pretty plain, upon principle, that an agreement to transfer the property in something that is attached to the soil at the time of the agreement, but which is to be severed from the soil and converted into goods before the property is to be transferred, is an agreement for the sale of goods within the meaning of the 9 Geo. 4, c. 14, if not of the 29 Car. 2, c. 3. The agreement is, that the thing shall be rendered into goods and then in that state sold; it is an executory agreement for the sale of goods, not existing in that capacity at the time of the contract. And when the agreement is, that the property (a) Garbutt v. Watson, 5 B. & A. 613. (c) Harman v. Reeve, 25 L. J. C. P. 257; 18 C. B. 587. is to be transferred before the thing is severed, it seems clear enough, that it is not a contract for the sale of goods, it is a contract for a sale, but the thing to be sold is not goods. If this be the principle, the true subject of inquiry in each case is, when do the parties intend that the property is to pass ? if the things perish by inevitable accident before the severance, whom do they mean to bear the loss? for in general that is a good test of whether they intend the property to pass or not; in other words, if the contract be for the sale of the things after they have been severed from the land so as to become the subject of larceny at common law, it is, at least, since the 9 Geo. 4, c. 14, a contract for the sale of goods, wares, and merchandizes, within the 17th section of the Statute of Frauds. If the contract be for the sale of the things whilst they are attached to the soil and not the subject of larceny at common law, it is a contract for the sale of things, crops, fixtures, emblements, trees or minerals, which may or may not be an interest in land within the 4th section of the statute, but are not goods, wares, and merchandizes within the 17th section. But the Sale of Goods Act appears to have altered the law to this extent, that so long as the contract provides for the severance from the soil of the thing sold, even though it is the buyer who is to effect the severance, or the property has passed before severance, it is a contract for the sale of goods (a). But in Lavery v. Pursell (b), in 1888, Chitty, J., held that a sale of the building materials of a house, to be taken down and cleared off the ground by the buyer within two months, was within the 4th section of the Statute of Frauds. In Lee v. Gaskell (c), in 1876, a contract for the sale of unsevered tenant's fixtures was held to be within neither the 4th section nor the 17th section of the Statute of Frauds, but if the fixtures were sold for the purpose of being removed, it is submitted that such a contract would be within the Sale of Goods Act. In Morgan v. (a) Marshall v. Green (1876), 40 L. J. C. P. 153; 1 C. P. D. 35. Russell & Sons (a), in 1908, it was held that an agreement whereby the seller sold to the buyers certain slag and cinders which had, as it was found by the Court, become part of the soil of premises of which the seller was the lessee, was not a contract for the sale of goods, but a contract to grant an interest in land. In reviewing the authorities under the older statutes, it is of some importance to remark how the question arose before the Court, and whether the decision turned upon the legal effect of the contract proved in evidence, or upon the contract stated in the pleadings, for some misapprehensions seem to have arisen from neglecting this. The first case that is generally cited on the subject was Waddington v. Bristow (b), decided by the Common Pleas in 1801. It was an action against executors. The declaration was that the defendant's testator was possessed of land on which hops were then growing; that the plaintiffs bargained for and agreed to buy, and the testator agreed to sell all the hops then growing, to be delivered in pockets, &c. In proof of this declaration a document was produced, signed by both parties, which was in the following terms:-" Agreed to give "the undermentioned gentlemen at the rate of 101. per cwt. "for the quantities of hops as attached to their respective "names, to be in pockets, and to be delivered at Whitstable."Wm. Francis (the testator), about 23 acres." This paper was not stamped, and the question was not whether it came within the Statute of Frauds or not, but whether it came within the exemption in the Stamp Act of agreements relating to the sale of goods, wares, and merchandizes. Lord Alvanley thought it an agreement for the sale of goods, and something more, viz., an agreement not to sell the produce of the land to any one else before it was severed. Heath, J., and Rooke, J thought a contract for the sale of non-existing goods was not within the exemption, and that as in this case the hops did not at the time of the sale exist as goods, it required a stamp Chambre, J., thought a contract for the sale of non-existing (a) Morgan v. Russell & Sons, [1909] 1 K. B. 357. (b) Waddington v. Bristow, 2 B. & P. 452. goods was within the exemption; he seems to have doubted whether the agreement proved was not within the exemption, but he agreed with Lord Alvanley that the agreement declared upon gave the purchaser an interest in the produce of the vendor's land. It seems probable that Chambre, J., would have held the agreement declared on within the 4th section of the Statute of Frauds, but it seems difficult to treat this case as directly deciding anything, and Parke, B., in Rodwell v. Phillips (a), threw doubt on it. In Crosby v. Wadsworth (b), in 1805, the action was trespass to the plaintiff's close, growing grass and hay. The plaintiff claimed the hay under a parol contract; Lord Ellenborough expressed an opinion that it could not be an agreement within the 17th section, because the goods did not exist as such at the time of the contract; on this opinion he afterwards acted in Groves v. Buck (c), but whatever it might be then, it was no longer law after Lord Tenterden's Act. But the judgment of the Court was that an agreement conferring an exclusive right to the growing grass was an agreement for an interest in land. It may be observed that on these pleadings the effect of the agreement was not material; if the agreement did not give an exclusive right to the growing grass, trespass would not lie; if it did, the statute applied: in either case the plaintiff failed (d). In Scorell v. Boxall (e), in 1827, on similar pleadings, the Exchequer decided the same point the same way, where the subject-matter of the action was growing underwood. In both those cases the Court had to decide upon the contract as it was stated on the pleadings; but in many cases. the question depended on the legal effect of the contract proved, and it became necessary to inquire into the state in which the subject-matter of the sale was, or would be, at the time when the property was intended to pass. In general, (a) Rodwell v. Phillips, 9 M. & W. 503. (b) Crosby v. Wadsworth, 6 East, 602. (c) Groves v. Buck, 3 M. & S. 178. (d) Carrington v. Roots, in 1837, 2 M. & W. 248. (e) Scorell v. Boxall, 1 Y. & J. 396. |