¶1delivered the opinion of this court.
¶2This is an action of assumpsit, instituted by the appellant to recover from the appellee the value of certain trees standing on the land of the latter. It appears from the evidence in the record, that in the year 1849, the appellee, by a written contract of sale, sold to the appellant certain trees standing on the land of the former, and that in pursuance of this contract the appellant cut down and removed a portion of the trees so purchased. It also appears that in the year 1850, in the presence of the appellee, the appellant said to the witness Larrimore, “I have sold to Mr. Bryan all the balance of the trees standing in the wood, which will girt five feet and upwards, for three dollars per tree, to which the defendant replied, ‘yes,’ that is the bargain.” It is on this oral contract the action is brought, the declaration containing two counts, one specially on the contract, and the other for the value of the trees.
¶3It does not appear the appellee ever cut down any of the trees or exercised any control over their disposition. It does appear, however, from the testimony of the witness Tilghman, that in the year 1851, he, in company with another person, called upon the appellee “and informed him that they were going into his wood, at the instance of the plaintiff, to measure the trees, and asked the defendant to go along with them, which he (defendant) refused, saying he would have nothing to rio with it.”
¶4On this state of facts the plaintiff and defendant each offered three prayers to the court; those of the defendants were granted, and those on behalf of the plaintiff were *151rejected. This disposition by the court below of the several propositions, we think, was erroneous. The prayers of the defendant were all based on the idea that the contract proved was within the statute of frauds, and as it was not evidenced by anything in writing, or the trees delivered to or accepted by the defendant, that there could be no recovery. Those of the plaintiff present the theory, that inasmuch as the defendant was owner and in possession of the land on which the trees were growing, the sale, eo instanti, by force of law, gave possession of the trees to the defendant. We think the propositions of the plaintiff ought to have been granted, and those of the defendant rejected.
¶5The contract proven was one within the 17th section of the statute of frauds. The authorities establishing this proposition are numerous, both in England and this country. It would be both an useless and tedious work to examine them in detail; the more particularly so as that labor has been most completely perfoimed by Mr. Greenleaf, in his Work on Evidence, Vol. 1, sec. 271. The principle to be gathered from a majority of the cases seems to be this, “that where timber or other produce of the land, or any other thing annexed to the freehold, is specifically sold, whether it is to be severed from the soil by the vendor, or to be taken by the vendee, under a special license to enter for that purpose, it is still, in the contemplation of the parties, evidently and substantially a sale of goods only.”
¶6According to this view, the contract by which- originally the defendant in this action sold to the plaintiff the trees, was one for the sale of goods;' and as this was the character of the thing purchased by the plaintiff, that character was retained up to the time when the plaintiff resold to the defendant.
¶7We do not see how it is possible to effectuate a delivery more perfect than the one in this case. The defendant owned and had' possession of the land on which the trees were. It was not physically possible for the plaintiff to give him a more perfect possession, unless he had severed the trees from the soil, which, by the terms of the contract, he was not *152bound to do, and- which, in all probability, would have' defeated the motive of the defendant in making the repurchase, it being most likely that he was induced to engage in the transaction by a desire to have the trees remain standing on his land.
¶8Judgment reversed and procedendo awarded.-