majority"> OlaRK, C. J.

A contract to cut and remove timber is not enforceable unless in writing, Mizell v. Burnett, 49 N. C., 252. But this applies to executory contracts only.

It appears in tbe record tbat it is admitted by both parties tbat there was no contract or memorandum of sale in writing; tbat all trees cut by defendant and removed were measured and paid for at $6 per thousand, but tbat tbe defendant cut other trees which were not measured or paid for or removed from tbe land. It is controverted tbat tbe defendant promised to pay for them and that tbe logs have rotted by reason of tbe plaintiff relying on defendant’s agreement to pay for them.

As to tbe first cause of action, tbe contract not being in writing and being denied by tbe defendant, tbe plaintiff is entitled to recover tbe injury to tbe land from tbe trees cut down and removed, Archibald v. Davis, 49 N. C., 138, or tbe value of tbe logs cut and removed as be may elect, unless be agreed to accept $6 per thousand in full payment, as alleged by tbe defendant. Tbe plaintiff claims tbat be accepted $6 per thousand not in full settlement, but only upon condition tbat tbe defendant should cut and pay for all tbe timber, and tbat this not being done be is entitled to recover tbe actual damage.. This raises an issue of fact *26 to be passed upon, by tbe jury. If this issue is found in favor of the plaintiff the recovery should be credited with the amount paid.

As to the second cause of action, it being admitted that the defendant cut sundry other logs and left them lying upon the ground, and the contract being denied because not in writing, the plaintiff is entitled to recover the injury to the value of the land from the trees being thus cut down and left on the ground by the defendant, Archibald v. Davis, supra. If the defendant had removed these logs the plaintiff would be entitled to recover the value of the same.

If it were incumbent on the plaintiff to sell the logs to minimize his loss he is entitled to show that he did not do so by reason of the agreement of the defendant, subsequent to cutting the logs, that he would remove and pay for them. By the act of the defendant in cutting the logs they became personalty, and the promise of the defendant to pay for them, if shown, would not be barred by the statute of frauds. Green v. R. R., 73 N. C., 526; Lumber Co. v. Brown, 160 N. C., 283.

The judgment of nonsuit must to this extent be

Reversed.

Citation profile

How this case has been treated — in progress