when there was a contract for the sale of goods in a state not yet fit for delivery, it was considered that the property was not intended to be transferred to the purchaser until the seller had done all that he was bound to do to render the goods fit for delivery, unless a contrary intention clearly appeared (post, page 184), and this rule applied where the contract was for the sale of things not yet rendered into goods, but which were, if the agreement was pursued, to be rendered into goods. And now, by the Sale of Goods Act, 1893, s. 4 (2), the provisions of the section apply notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of the contract be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof or rendering the same fit for delivery. The intention of the parties must be presumed to be to transfer the property in the things when in a deliverable state, i.e., when severed from the soil, if that was to be done by the seller, and not before. There is no doubt on the authorities that such a contract, continuing executory till the subject-matter of the sale was converted into goods, was a contract concerning the sale of goods, and not a contract for the sale of an interest in land.

Thus, in Smith v. Surman (a), in 1829, the King's Bench held that a verbal agreement for the sale of timber then growing, and to be cut by the seller, was a contract for the sale of goods within the meaning of the 17th section. Littledale, J., said, in delivering judgment, "The impression "on my mind is that wherever the subject-matter at the "time of the completion of the contract is goods, wares, and "merchandizes, the 17th section attaches upon it, although "it has become goods, wares, and merchandizes between the "time of making and completing the contract, either by one "of the parties having bestowed his work and labour upon "his own materials, or by his having converted a portion of "his freehold into goods and chattels." In that case the

(a) Smith v. Surman, 9 B. & C. 561. See also Teal v.

Auty, 2 Brod. & B. 101.

timber was to be cut by the sellers. In Watts v. Friend (a), in 1830, the plaintiff agreed to supply the defendant with turnip seed: the defendant was to sow it on his own land, and to sell the seed produced to the plaintiff at a guinea a bushel. There turned out to be more than 101. worth of seed. The King's Bench held that this contract was within the 17th section. In Sainsbury v. Matthews (b), in 1838, the Exchequer held that a contract for the sale of potatoes not yet at maturity, at so much per sack, to be dug by the buyer, was not a contract passing any immediate interest at all, but a contract for the sale of goods at a future day. Parke, B., said, "The contract gives no right to the land; if "a tempest had destroyed the crop in the meantime, and "there had been none to deliver, the loss would clearly have "fallen upon the defendant" (the seller). "It is only a "contract for goods to be sold and delivered." The contract was for the sale of things which were not goods at the time of the contract, but were to be made so before the contract attached upon them and the property passed. The terms of the agreement by which the price was to depend on the number of sacks seem to be in this case important, and to make the distinction between it and the following cases :

In Parker v. Staniland (c), in 1809, the bargain was for the crop of potatoes in the ground in November, and the buyer was to take them immediately; instead of taking them immediately, he dug and removed them at intervals, taking the last about Lady Day, by which time they were damaged by the frost. The buyer paid for all the potatoes he had taken away, but refused to dig up or take away the potatoes in a part of the field where they were destroyed by frost. The seller recovered a verdict for their price. No question could arise upon the 17th section, for there was both a part payment and a part acceptance and receipt, but a rule nisi for a non-suit was granted on the ground that the bargain was for an interest in land; no point seems to have

(a) Watts v. Friend, 10 B. & C. 446.

(b) Sainsbury v. Matthews, 4 M. & W. 343; 7 Dowl. 23.
(c) Parker v. Staniland, 11 East, 365.

been made about the risk of loss, perhaps because it was considered a clear thing that the damage arose from the gross negligence of the buyer, who should have dug the potatoes up before the winter. An objection to the form of action, which would probably have raised the same point in another shape, was overruled, because not taken at the trial. But though the fact of the point not being made may weaken the authority of the case, it seems that Lord Ellenborough did consider that the contract gave the buyer property in the potatoes whilst yet unsevered from the soil, and that a property in them was not an interest in land, "though," said he, "they were not in the shape of personal chattels, "as not being severed from the land, so that larceny might "be committed of them."

In the very same week, June 6th, 1809, the Common Pleas, in Emmerson v. Heelis (a), decided the reverse. In that case there was a sale by auction of a growing crop of turnips, to be dug by the buyer, for a price less than 107., so that no question could arise upon the 17th section. There seems to have been no express agreement as to when they were to be removed, but in other respects the contract seems identical with that in Parker v. Staniland (b). The seller brought an action against the buyer for not taking these turnips away. On behalf of the defendant several objections were made, which were satisfactorily answered; but a great one was, that it was a contract for an interest in land, and that the only memorandum was that made by the auctioneer at the sale, and that the signature of the auctioneer would not bind the buyer. The Court, after argument and taking time to consider, decided that it was an interest in land, but that the signature of the auctioneer was binding. From the expressions used, it appears that the Court thought the buyer took an interest in the turnips whilst yet in the soil, and that it never occurred to them that there could be any difference between growing turnips, which are emblements,

(a) Emmerson v. Heelis, 2 Taunt. 38.
(b) Parker v. Staniland, 11 East, 365.

and hops and growing timber, both of which were instanced by the Court.

In Rodwell v. Phillips (a), in 1842, the Exchequer thought that the following agreement: "Thomas Phillips agrees to "sell to Mr. Rodwell the crops of fruit and vegetables of the upper portion of the garden, from the large pear trees, for "the sum of 301., and Lionel Rodwell agrees to buy the "same at the aforesaid price, and has paid 17. deposit," gave the buyer an interest in the fruit before severance and was an interest in land, and consequently required a stamp. The buyer was to gather the fruit. Lord Abinger, C. B., pointed out in his judgment that growing fruit would not pass to an executor, but to the heir. The pears, in this case, were neither emblements nor fixtures, but part of the freehold. The distinction between these cases, in which the property in the things was held to pass before they were severed from the soil, and Sainsbury v. Matthews (b), is precisely the same as that between an ordinary [bargain and] sale, and the case of Simmons v. Swift (c).

As the parties might enter in fact into a contract giving an interest in crops whilst still unsevered, it was desirable to inquire whether such a contract was within either the 4th or 17th sections of the Statute of Frauds, and although the doubt, which formerly existed as to whether a sale of emblements before severance constituted a sale of goods or a sale of an interest in land, has now been resolved by section 62 (1) of the Sale of Goods Act, the older decisions on the question are still of interest.

In Warwick v. Bruce (d), in 1813, in which the contract declared on was a contract for the sale of all the potatoes then growing on certain lands, Lord Ellenborough overruled an objection that the contract was within the 4th section of the Statute of Frauds. "If," said he, "this had been a contract conferring an exclusive right to the land for a time, for the

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(a) Rodwell v. Phillips, 9 M. & W. 501.

(b) Sainsbury v. Matthews, 4 M. & W. 343 ; 7 Dowl. 23.
(c) Simmons v. Swift, 5 B. & C. 857.

(d) Warwick v. Bruce, 2 M. & S. 205.

purpose of making a profit of its growing surface, it would "be a contract for the sale of an interest in land. But here "it is a contract for the sale of potatoes at so much an acre. "The potatoes are the subject-matter of sale, and whether at "the time of the sale they were covered with earth in the "field or in a box, still it was a sale of a mere chattel." It seems pretty clear that Lord Ellenborough thought that growing crops were not part of the land within the 4th section, though he certainly never intimates an opinion that they were goods in any sense of the word before severance.

In Evans v. Roberts (a), in 1826, the agreement was for the sale of a cover of potatoes, to be turned up by the seller at the price of 51. No question would arise under the 17th section, as the price was below 107.; but it was objected that it was a contract for the sale of an interest in land. Holroyd, J., pointed out that the buyer was to have nothing to do with the potatoes till they were raised; and, moreover, that the seller might choose which cover the buyer was to have, so that he could have no interest in any specific land; but though both these propositions seem pretty clear, and either of them would have disposed of the case, Bayley, J., and Littledale, J., took the opportunity of giving their opinions on the law at some length. Bayley, J., held that emblements and fixtures were not land within the 4th section, and expressly dissented from the opinion in Emmerson v. Heelis (b), which he treated as a dictum not necessary for the decision of the case (c). Littledale, J., at some length gave an opinion that land in the 4th section "meant land "taken as mere land, and not its annual growing productions." This opinion is in accordance with what appears to have been Lord Ellenborough's; but Bayley, J., went further, and stated that growing crops were mere goods, and might be

(a) Evans v. Roberts, 5 B. & C. 829.

(b) Emmerson v. Heelis, 2 Taunt. 38, ante, p. 11.

(c) This was a misapprehension of the learned judge, as it was a necessary point to be decided before the point on which the judgment was given could arise indeed, the whole of this judgment of Bayley, J., is open to his own observation; it was not much considered, for it was unnecessary to the decision of the case then before the Court.