142 CONTRACTS REGARDING GROWING TIMBER 



which sales of standing timber should be considered either 

 as sales of interests in land or of goods and chattels, this con- 

 fusion appears to have resulted not from different theories 

 as to the character of the property but from divergent 

 views as to the interpretation to be placed upon the words 

 and conduct of the parties as indicating their intention. 



110. The Rule in Massachusetts, Maine and Con- 

 necticut. Thus Massachusetts courts hold that if the in- 

 tention of the parties was to transfer an immediate title to 

 growing timber with the understanding that the trees are to 

 remain on the land and derive nourishment therefrom, the 

 contract is one for the sale of an interest in land and thus 

 within the fourth section of the statute of frauds ; x but un- 

 less a contrary intention clearly appears, the courts of that 

 jurisdiction will construe a parol sale of standing timber as 

 one which contemplates a transfer of the title after the 

 trees have been severed. The rule of law in Massachusetts 

 is that if the contract is not in proper form to convey an in- 

 terest in land, it must be held to be a mere executory agree- 

 ment for the sale of future goods, the title to which will pass 

 only upon the severance of the trees from the soil. 2 The 

 license which the purchaser has to take the trees may be re- 

 voked at any time, 3 but the title to all trees actually cut 

 down before the revocation of the license will be vested in 

 the vendee 4 and the revocation will constitute a breach of 

 contract as to trees not yet severed for which the vendor 

 must respond in an action for damages brought by 

 the vendee. 5 



The Maine rule 6 is substantially the same as that of 

 Massachusetts, and the Connecticut 7 courts seem to have 

 adopted the same principles. 



1. White v. Foster, 102 Mass. 375. 



2. Drake v. Wells, 11 Allen (Mass.) 141 (1865) ; Douglas v. Shumway, 13 Gray(Mass.) 



498; Claflin v. Carpenter, 4 Mete. (Mass.) 580, 88 Am. Dec. 381; Nettleton v. 

 Sikes, 8 Mete. (Mass.) 34; Shakers United Society v. Brooks, 145 Mass. 410; 

 Hill v. Hill, 113 Mass. 103, 105. 



3. Giles v. Simonds, 15 Gray (Mass.) 441; Drake v. Wells, 11 Allen (Mass.) 141; 



Whitmarsh v. Walker, 1 Mete. 316. 



4. Hill v. Cutting, 107 Mass. 596; Driscoll v. Marshall, 15 Gray 62; Douglas v. Shum- 



way, 13 Gray (Mass.) 498. 



5. Fletcher v. Livingston, 153 Mass. 388. 



6. Brown v. Bishop 105 Me. 272, 74 Atl. 724; Emerson v. Shores, 95 Me. 237, 49 



Atl. 1051, 85 Am. St. Rep. 404; Banton v. Shorey, 77 Me. 48;Erskinev. 

 Plummer, 7 Me. 477, 22 Am. Dec. 216; Cutler v. Pope, 13 Me. 377. 



7. Upson v. Holmes, 51 Conn. 500; Bostwick v. Leach, 3 Day (Conn.) 484. 



