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]*220The 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]*221defendant’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]*222There 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 for the sale of them, whether mature or immature, whether the property in them is transferred before or after severance, is not an agreement for the sale of any interest in land, and is not governed by the 4th section of the Statute of Frauds. Growing- crops, if fructus naturales, are part of the soil, before severance, and an agreement therefore vesting an interest in them in the purchaser before severance, is governed by the 4th section; but if the interest is not to be vested till they are converted into chattels by severance, then the agreement is an executory agreement for the sale of goods, wares and merchandise, governed by the B/th, and not by the 4th section of the Statute.
Assuming these distinctions to be well founded, still what is the natural and what the artificial product re[223]*223mains to be determined in each. case. Mr. Phillips, in his work on Evidence, 3 vol., 250, says, the Statute does not include agreements for the sale of the produce of a given quantity of land, and which will afterwards become a chattel; though some advantage may accrue to the vendee by its continuing for a time in the land.
In Taylor’s recent hook on the Law of Evidence, 2d vol., sec. 952, the following propositions are submitted: 1st. a contract for the purchase of fruits
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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]*220The 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]*221defendant’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]*222There 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 for the sale of them, whether mature or immature, whether the property in them is transferred before or after severance, is not an agreement for the sale of any interest in land, and is not governed by the 4th section of the Statute of Frauds. Growing- crops, if fructus naturales, are part of the soil, before severance, and an agreement therefore vesting an interest in them in the purchaser before severance, is governed by the 4th section; but if the interest is not to be vested till they are converted into chattels by severance, then the agreement is an executory agreement for the sale of goods, wares and merchandise, governed by the B/th, and not by the 4th section of the Statute.
Assuming these distinctions to be well founded, still what is the natural and what the artificial product re[223]*223mains to be determined in each. case. Mr. Phillips, in his work on Evidence, 3 vol., 250, says, the Statute does not include agreements for the sale of the produce of a given quantity of land, and which will afterwards become a chattel; though some advantage may accrue to the vendee by its continuing for a time in the land.
In Taylor’s recent hook on the Law of Evidence, 2d vol., sec. 952, the following propositions are submitted: 1st. a contract for the purchase of fruits of the earth, ripe, though not yet gathered, is not a contract for any interest in lands, though the vendee is to enter and gather them. 2nd. A sale of any growing produce of the earth, reared annually by labor and expense, and in actual existence, at the time of the contract, as for instance a growing crop of corn, hops, potatoes, or turnips, is not within the 4th section, though the purchaser is to harvest or dig them. 3rd. An agreement respecting the sale of a growing crop of fruit, or grass, or of standing underwood, growing poles or timber, is within the 4th section, and a written contract of sale cannot be dispensed with.
However sound his 1st and 2nd propositions, we think his 3rd is to he taken with some qualification—and that a growing crop of peaches or other fruit, requiring periodical expense, industry and'attention, in its yield and production, may be well classed as fructus industriales aud not subject to the 4th section of the Statute.
Brown on Statute of Frauds, in sections 236, 237, 246, 241 and 249, and Greenleaf’s Ev. 1 vol., sec. 271, have furnished from the adjudged cases, a construction more in consonance with our views upon the subject, and is substantially to the following effect: There is nothing in the vegetable or fruit which is an interest in, or concerning land, when severed from the soil, whether trees, grass and other spontaneous growth (prima vesturd) or grain, vegetables, or any kind of crops, (fructus industriales) the product of periodical'planting and culture; they are alike [224]*224mere chattels, and the severance may he in fact, as when they are cut and removed from the ground ; or in law, as when they are growing, the owner in fee of the land, hy a valid conveyance, sells them to another person, or where he sells the land, reserving them hy express provision.
As a general rule, if the products of the earth are sold specifically, and hy the terms of the contract to he separately delivered, as chattels, such a sale is not affected by the 4th section of the Statute, as amounting to a sale of any interest in the land. When such is the character of the transaction, it matters not whether the product be trees, grass and other spontaneous growth, or grain, vegetables, or other crops raised periodically by cultivation—and it is quite as immaterial whether the produce is fully grown or in the process of growing, at the time of making the contract.
The circumstance that the produce purchased may, or probably, or certainly will derive nourishment from the soil between the time of the contract and the time of the delivery, is not conclusive as to the operation of the Statute.
If the contract, when executed is to convey to the purchaser a mere chattel, though it may be in the interim a' part of the realty, it is not affected by the Statute; but if the contract is, in the interim, to confer upon the purchaser an exclusive right to the land for a time, for the purpose of making a profit of the growing surface, it is affected by the Statute, and must be in writing, although the purchaser is at the last to take from the land only a chattel.
To put a reasonable construction upon the terms of the 4th section of the Statute, from the evidence in this case, it is clear the contract in question is not within its meaning. It had been executed by the plaintiff, and the fruit had been gathered, and in fact paid for at the time of the suit.
It was in proof that a part of the fruit was prematurely ripe, at the time of the contract.
[225]*225(Decided 29th May, 1874.)
It would be a perversion of the objects of the Statute to hold as invalid, the sale, in other respects legal, of the growing crop of peaches, with no intent of the parties, to sell or purchase the soil, but affording a mere license, express or implied, to the purchaser to go upon the land, to gather the fruit and remove the same. Substantially, to use the language of sec. 271, of] Greenleaf’s Ev., the transaction takes its character of realty or personalty from the principal subject-matter of the contract, and the interest of the parties, and, therefore, a sale of any growing produce of the earth, in actual existence, at the time of the contract, whether it be in a state of maturity or not, is not to be considered a sale of an interest in, or concerning land. Where timber or other produce of the land, or any other thing annexed to the freehold, is specifically sold, whether to be severed from the soil by the vendor, or to be taken by the vendee, under a special license to enter for that purpose, it is still, in contemplation of the parties, a sale of goods only, and not within the Statute.
Judgment affirmed.