#### J. A. DAVIS v. J. E. HARRIS.

(Filed 10 September, 1919.)

1. Contracts— Writings— Statute of Frauds— Timber— Deeds and Conveyances.

The principle that contracts to cut and remove standing timber upon lands is not enforceable unless in writing applies only to executory contracts.

2. Same — Breach—Damages.

Where a parol executory contract to cut and remove standing timber upon lands at a certain price has not been reduced to writing and signed by the parties, etc., the grantor may not maintain his action for damages upon the ground that his contract was for the cutting of all the merchantable timber, and that the defendant had only cut the select timber at the agreed price; but after the timber has been cut and removed from the land the plaintiff may either recover the full injury to the lands from the trees cut down or removed or the full value thereof, unless he had otherwise agreed.

3. Same — Damages Minimized — Evidence.

Where an executory contract to cut timber standing upon lands is void because not in writing, etc., the grantor may recover damages to the land caused by the grantee’s cutting certain trees thereon and permitting *25them to remain ancl rot, the severed trees being personalty; and though the grantor may be required to sell the trees to minimize his damages, he may prove an agreement of the grantee to take them at a certain price, as a reason why he has not done so.

Appeal by plaintiff from Bond, J., at June Term, 1919, of BuNCOMBE.

Tbe plaintiff by oral contract sold.’ to tbe defendant tbe mill timber on bis land, tbe same to be measured and paid for at tbe rate of $6 per thousand feet before removal. Tbe plaintiff admits that tbe defendant paid at tbat rate for all tbe timber cut and removed, but alleges tliat tbe defendant cut 163 other logs which be left lying upon tbe land. Tbe plaintiff further alleges tbat the defendant agreed tbat be would cut .all tbe merchantable timber on tbe land, but tbat on tbe contrary be picked out tbe best timber, which be removed and paid for.

Tbe defendant denies these allegations. Tbe plaintiff brings this action upon tbe ground tbat tbe defendant having picked out tbe best timber be is entitled to be paid a higher price for tbe same than $6 per thousand, and also to recover tbe value of tbe logs left upon tbe ground and not removed. Tbe court nonsuited tbe plaintiff because tbe contract was not in writing.

G. M. T. Fountain £ Son for ‘plaintiff.

Allsbrooh & Phillips for defendant.

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 *26to 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.