54 GROWING FRUIT AND TIMBER. 



laud : if a tempest had destroyed the crop in the meantime, and there 

 had been none to deliver, the loss would have clearly fallen upon the 

 defendant. The case is stronger than that of Evans v. Roberts, because 

 here there is only a stipulation to pay so much per sack for the potatoes 

 when delivered: it is only a contract for goods to be sold and delivered." 

 And^w Lord Ahiiujer C.B.: " This was not a contract giving an interest 

 in the land : it is only a contract to sell potatoes at so much a sack on 

 a future day, to be taken up at the expense of the vendee ; he must give 

 notice to the defendant for that purpose, and cannot come upon the land 

 when he pleases." 



In Mod/cell v. PldlUps it was decided that an agreement for the sale 

 of gro/rini/ fruit and vcgetaltcs is an agreement for the sale of an interest 

 in land, within the meaning of the Stamp Act, 55 Geo. III. c. 184, 

 sched. part I., title " Conveyance" and if of the value of £20, requires a 

 stamp. The memorandum of agreement was as follows : 



Memorandum of agreement, this lith day of July, 1840. 



" Thomas Phitlijis agrees to sell to Mr. Rod well all the crops of fruit and 

 vegetables of the upjjcr portion of the garden, from the targe pear 

 trees for the sum of £S0 ; and Lionel Rodwell agrees to buy the 

 same at the aforesaid price, and has paid £1 dep)osii. 



" Witness our hands, " T. P. 



" L. Rr 



Lord Ahinger C.B., said: "There is a great variety of cases, in which a 

 distinction is made between the sale of growing crops and the sale of an 

 interest in land ; and it must be admitted that taking the cases alto- 

 gether, no general rule is laid down in any one of them, that is not 

 contradicted by some other. It is sufficient, however, for us to say, 

 that we think this case ought not to be governed by any of those in 

 ■which it is decided that a sale of growing crops is a sale of goods and 

 chattels. Growing fruit would not pass to an executor, but to the heir; 

 it could not be taken by a tenant for life, or levied in execution under a 

 writ of fieri facias, by the sheriff ; therefore it is distinct from all those 

 cases where the interest would pass not to the heir-at-law, but to some 

 other person. Undoubtedly there is a case, Smith v. Surman, in which 

 it appears that a contract to sett timber growing was lield not to convey 

 any interest in the land ; but that was wdicre the parties contracted to 

 sell the timber at so much per foot, and from tiic nature of that contract 

 it must be taken to have been the same as if the parties had contracted 

 for the sale of timber already felled. In this case there seems to be no 

 doubt that this was a sale of that species of interest in the produce of 



