1. “The sale of standing timber, where the contract contemplates that the growing trees are to remain in the soil for a fixed time or indefinitely, at the pleasure of the vendee, concerns an interest in the land. Moore v. Vickers, 126 Ga. 42 (54 S. E. 814). On the other hand, the prevailing rule seems to be that if the trees sold are to be immediately severed from the soil and carried away, and are not to be left to grow and attain additional strength from the soil, the sale is that of personal property, and not of an interest in land.” Graham v. West, 126 Ga. 624 (55 S. E. 931).
2. “A contract of sale in regard to timber which is attached to the soil, but which is presently to be severed therefrom and converted into personalty before the title is to pass to the purchaser, is an executory sale of personalty, and not of an interest in land.” Clarke v. McNatt, 132 Ga. 610 (3) (64 S. E. 795, 26 L. R. A. (N. S.) 585).
3. An oral agreement whereby an owner “contracted and agreed to sell” to another “all of the pine, oak, poplar and sweetgum timber located” on a described tract of land “at and for a price of six dollars ($6.00) per thousand feet on the stump, payment to be made for said timber as the same is sawed and stacked,” and whereby the purchaser agreed “to commence cutting of said timber” within a few months and “to continue regularly such cutting and sawing operations until all the timber suitable for sawmill purposes is cut and removed,” under which agreement the purchaser paid the sum of $500 “as an advance on the price,” the remainder to be paid as above indicated, was an executory contract for the sale of personalty whereby the seller agreed to surrender to the purchaser the possession and title of the timber upon its being converted into lumber and paid for at the agreed price per thousand feet. Lovelace-Eubanks Lumber Co. v. Brown, 38 Ga. App. 223 (143 S. E. 434). See also, in this connection, Harrell v. Williams, 159 Ga. 230 (125 S. E. 452).
4. Where the purchaser, after taking and removing the better grades of the timber, refused to cut the poorer grades, notwithstanding all the *60timber was sold at an average price, tbe seller could not sue the purchaser for the entire contract price of the timber which the purchaser failed and refused to cut. The seller still owned and possessed the remaining timber, and the remedy would be an action for damages for the breach of the contract; and the measure of the damage would be the difference between the contract price and the market value of such remaining timber. Oklahoma. Vinegar Co. v. Carter, 116 Ga. 140 (2) (42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112) ; Irwin v. Askew, 74 Ga. 581 (3) ; Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (4) (56 S. E. 1030) ; Reed v. Dougherty, 94 Ga. 661 (20 S. E. 965) ; Dilman v. Patterson Produce Co., 2 Ga. App. 213 (58 S. E. 365) ; Mack v. Pardee, 39 Ga. App. 310, 315 (147 S. E. 147); Clark v. Wood, 39 Ga. App. 340 (147 S. E. 173).
Decided February 23, 1932. Rehearing denied March 5, 1932. W. A. Slaton, for plaintiff in error. C. E. Sutton, contra.5. Since the plaintiff was not entitled to recover the purchase price, and alleged nothing as to the market value of the timber which the defendant failed and refused to cut, so as to show damage by the defendant’s abandonment of the contract, no cause of action was stated, and the court erred in not sustaining the general demurrer and dismissing the petition. Hadden v. Southern Messenger Service, 135 Ga. 372 (3) (69 S. E. 480) ; Sparks Milling Co. v. Western Union Tel. Co., 9 Ga. App. 728 (72 S. E. 179).
6. Since the contract did not show a sale of an interest in realty, the statute of frauds as to a sale of realty was inapplicable, and, seemingly, there was such part performance as would authorize a finding that the contract was removed from the operation of the statute so far as it might apply to a sale of personalty. Nellis v. Houser, 33 Ga. App. 266 (3) (125 S. E. 790).
Judgment reversed.
Jenkins, P. J., and Stephens, J., concur.