Baucom v. Pioneer Land Co. , 148 Ga. 633 ( 1918 )

Beck, P. J.

1. Where the owner of certain traets of land and the timber growing thereon entered into a parol contract with another whereby the latter was to “begin immediately to cut such of the pine and cypress timber on said tracts of land .as would make a merchantable cross-tie, . . it being contemplated by the parties that the work was to progress as rapidly as possible and the timber was to be cut and manufactured into cross-ties as soon as the same could be done in the practical operation of the cross-tie business, and said operation was to continue until all of said tracts or parcels of'land had been cut over and the timber thereon manufactured into cross-ties, . . and the plaintiff [the owner of the land] was to get for the cross-ties manufactured from said timber the sum of 13 cents per tie, and defendant [the other party to the contract] was to get such an amount over and above said sum as he could realize upon the sale thereof, . . it being the intention of both parties that said work should progress and be completed as soon as practicable,” the contract was one for the sale of growing trees standing upon land. A sale of growing trees is a sale of an interest in land, and such a sale, under the statute of frauds, must be in writing, because it is a contract'concerning land. Civil Code, §§ 3222 (4), 3623, 4634; North Ga. Co. v. Bebee, 128 Ga. 563 (57 S. E. 873); Coody v. Gress Lumber Co., 82 Ga. 793 (10 S. E. 218), .See, in this connection, Owens v. Lewis, 46 Ind. 488 (15 Am. R. 295), which is cited approvingly in the case last cited.

No. 996. December 12, 1918.

Injunction. Before Judge Thomas. Lowndes superior court. May 15, 1918.

Whiiaker & Dukes, for plaintiff in error. E. E. Wilcox, contra.

2. The fact that the purchaser of the standing trees in the instant case had expended money in procuring hands whereby to cut and remove the trees, and had purchased an ox with which to move the trees, and had also cut a part of the trees upon the land in question, was not such part performance as took the contract out of the operation of the statute. Eor, if by the employment of hands and the purchase of the ox injury was incurred for which the owner of the land is liable, the purchaser could be compensated by damages.

3. The court did not err in granting the injunction in favor of the owner of the lands against the other party to the contract, restraining the latter from entering upon the lands and cutting the timber.

Judgment affirmed.

All the Justices concur.