son whom she afterwards in consideration thereof did marry.

Point Involved: That a promise made in consideration of marriage is not enforceable unless in writing.

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MR. JUSTICE WILKINS delivered the opinion of the Court: 66* The Statute of Frauds provides: 'No action shall be brought whereby to charge any person upon any agreement made upon consideration of marriage unless the promise or agree

ment upon which said action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some person thereunto by him lawfully authorized. Saylor (a witness) testified that deceased,

gave witness a card with the name 'James E. Baker' printed on one side of it and on the other '$7,500.' This card was not produced in evidence, and even if it had been, it was not such an agreement, note or memorandum, in writing, as is required by the foregoing statute. The alleged promise being oral and given originally in consideration of marriage, was within the statute of frauds and no action could be maintained upon it.

Question 136: State the facts, the question presented and the Court's decision in the above case.

Case 137. Withers v. Richardson, 5 T. B. Monroe, 94.

JUDGE MILLS: "This is an action of assumpsit on a promise to marry, and a verdict and judgment for the plaintiff below; to reverse which, this writ of error is prosecuted.

66

The defendant pleaded that the contract

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was in parol only, and relied on the statute (of frauds). It has never been held that the words of the statute 'any agreement made upon consideration of marriage' meant or included promises to marry. It would be imputing to the legislature too great

an absurdity, to suppose that they had enacted that all our courtships, to be valid, must be in writing.

Question 137: Does the statute of frauds cover mutual promises to marry?

§ 120. (Contracts, Sec. 88.)

Contracts for the sale of lands or any interest in or concerning them are not enforceable unless proved by written evidence signed by the party sought to be charged.

Case 138. Kirkeby v. Erickson, 90 Minnesota Reports,

299.

Facts: Suit for damages for breach of an oral con'tract whereby plaintiff sold defendant growing wild grass to be cut by the defendant. Defense, the statute of frauds.

Point Involved: Whether a sale of growing wild grass to be cut by the vendee, is a contract creating an interest in real estate and therefore not enforceable unless in writing.

COLLINS, J.:

The grass which was the subject of the oral contract was a part of the plaintiff's real estate, and the agreement was void, because it attempted to create an estate in land, and was not in writing. At common law, grasses growing from perennial roots are regarded as fructus naturales, and while unsevered from the soil, are considered as pertaining to the realty. In this particular case, the right of the defendant to enter upon plaintiff's premises for the purpose of cutting and removing the grass was implied from the fact of the sale. Such a

case must be distinguished from one where the vendor of the property sold is to sever it from the soil himself. Verbal sales of that character have been frequently upheld as not within the statute.

Question 138: Was the subject-matter of the above contract personal or real property? Was the 4th section a defense?

Case 139. Dorris v. Kings, 54 S. W. Rep. (Tenn.) 683. Statement of Facts: Suit upon an alleged contract whereby defendants agreed to furnish plaintiffs all the merchantable timber on defendants' lands, cut into sawlogs of the proper length for manufacture into lumber. Defense, the statute of frauds.

Point Involved: Whether a contract to sell logs to be furnished and delivered by the seller from timber now growing, is a contract creating an interest in real estate, or a contract to sell personal property.

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BARTON, J.: This, as we understand the law, is simply an executory contract to sell and deliver certain personal property. It does not purport to be a contract selling them (Dorris & Sons) certain trees standing on the land, nor giving them a license to go upon the land to get certain trees, but is a contract on the part of the defendants to sever or cut and deliver all the merchantable timber. In the case of New York & E. T. Iron Co. v. Green County Iron Co., 11 Heisk. 434, Judge Freeman, said: "This was a contract for the sale of personalty; that is, an agreement to sell the timber designated. But the property did not pass with the timber until it could be used or received by the purchaser, at any rate, not until cut and corded, as it was to be paid for by the cord as used.' We think

This case is much stronger.

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that the portion of the contract for the breach of which this suit was brought, was clearly only an executory contract for the sale and delivery of severed timber, personal property, and therefore not within the statute of frauds. *

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Question 139: What was the contract in Case 139? Did the 4th section of the statute of frauds apply? Why?

Case 140. Bull v. Griswold, 19 Ill. 631.

Point Involved: Whether a sale of growing crops is a sale of real estate.

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CATON, C. J.: Growing crops are so far personalty that they may be sold and transferred by parol. They partake of realty, no doubt, so far as to pass by a deed of the land as incident to it, and so it is with many other articles which are well settled to be personal property, as fixtures of trade or machinery erected for mechanical purposes. If the wheat was sold by parol by the defendant to the plaintiff, that vested in him a good title.

Question 140: (1) Are growing crops considered as real property or personal property so far as a sale of the crop is ⚫ concerned?

(2) What is the rule where the land is sold upon which the crops are growing, if there is no reservation of such crops? (3) To what other property did the court liken growing crops?

(4) Distinguish this case from Case 139.

(Note as to short term leases: Short term leases, generally in the American statutes, for the term of one year, or in some states for three years, are excepted from the operation of the statute. The question arises whether this provision is to be construed in connection with the provision of the statute in reference to contracts that are not to be performed within a year from the making thereof. That is, if an oral lease for one year is valid by the statute, is such lease enforceable if it is to commence in futuro, so that it cannot be completed for more than a year. Some of the statutes provide that a lease for one year from the making thereof, need not be in writing, but most of the statutes omit that phrase. It is held in some jurisdictions that a lease to commence in futuro must end within a year from the time it is made, otherwise it is unenforceable for any period. See Wheeler v. Frankenthal, 78 Ill. 124. But other cases hold that a lease for the full year, though to begin in the future, is valid. See Young v. Dake, 5 N. Y. 463.)

§ 121. (Contracts, Sec. 89.) Contracts that cannot be performed within a year from the making thereof are not enforceable unless proved by written evidence signed by the party sought to be charged.

Case 141. Chase v. Hinkley, 126 Wis. 75.

Facts: A sued B for $39.00 for services rendered to B. B's defense was that A contracted to work for him for one year, but worked only a short time and broke his contract by quitting without cause. The evidence showed that in October, 1904, A orally agreed to work for B for one year beginning the following Monday; that A began work and performed services of the reasonable value (as on an implied contract) of $39.00 and then quit. A maintains that B cannot prove the alleged contract by way of defense, the same being oral and therefore within the statute of frauds.

Point Involved: Whether a contract for service which cannot be performed within a year from the making thereof, must be in writing in order to be proved in a judicial proceeding.

MARSHALL, J.:

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The excess of two days was just as efficient as a longer period to render the agreement void under (the statute of frauds).

The fact that the period of service agreed upon was to extend for one year from the time the performance commenced does not take the case out of the statute, for, where performance is to commence in the future, for the purposes of the statute the period to be considered is that beginning with the date of the agreement

Question 141: What were the facts, the question presented and the Court's decision in the above case?

Case 142. Warner v. Texas & Pacific R. Co., 164 U. S. 418.

Facts: "This was an action brought May 9, 1892, by Warner against the T. & P. R. Co., upon a contract made in 1874, by which it was agreed between the parties that, if the plaintiff would grade the ground for a switch, and put on the ties, at a certain point on the defendant's railroad, the defendant would put down the rails, and