
    No. 718
    SCHEIDERER v. McKINZIE et al
    Ohio Appeals, 3rd District, Union County
    No. 65.
    Decided March 30, 1923
    lis opinion has not been published except in Abstract.
    2A. REAL ESTATE.
    Growing timber is considered in Ohio as real es-te — A check not a sufficient memorandum to satisfy :atute of Frauds — Equity requires that where a irson receives money under an unenforceable con-act, the money must be returned before equitable lief will be granted.
    Attorneys — Myers, for Schneiderer; G. A. Hoopes, for McKinzie et al.
   ARDEN, J.

Epitomized Opinion

Scheiderer obtained an injunction in the Common eas Court of Union county enjoining the defend-ts from cutting standing timber upon lands in Union county owned by her, and asked for damages in the sum of $40 on account of trees already cut. In their cross-petition, defendants set out that they purchased from Black, plaintiff’s ancestor, certain growing trees thereon for'the sum of $300, including the trees cut, and also asked for damages in the sum of $205 for the issuance of the injunction. The plaintiff contended; that inasmuch as the agreement applied to real estate and was oral, the Statute of 'Fraud applied; The defendants insisted that the sale converted the growing trees into personalty and also claimed that the check given as the purchase price was a sufficient'Memorandum. As the lower court held for the defendants, plaintiff prosecuted error. In granting the injunction, the Court of Appeals held:

■1. Standing- and growing timber is real estate and the sale and payment with intent to remove the same does not convert it into personalty, and therefore the sale of such must be by a contract in writing or evidenced by a memorandum properly signed.

2. In order for a memorandum to be sufficient, it must contain the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself or some other writing to which it refers, and as the check in question falls short of this requirement, it is insufficient.

3. The equity of the case requires that the plaintiff refund to the defendant the sum of $300 paid for the timber before the injunction will be made perpetual.  