Pitkin v. Noyes.

These two last cases modify materially the doctrine of Graves v. Buck, and the earlier cases of Towns v. Osborne and Clayton v. Andrews, and hold that it is not essential that the goods be capable of delivery at the making of the contract to bring it within the statute. So the fact that the goods are to be transported to another place, and there delivered, does not take the case out of the statute. Kent v. Hutchinson, 3 B. & P. 233, and Astry v. Emery, 4 M. & S. 262.

The weight of American authority is in accordance with the doctrine of Garbut v. Watson, 5 B. & Ald. 613, and Smith v. Surnam, 9 B. & C. 561, that the mere fact that the goods are not, at the making of the contract, in the condition in which they are to be when delivered does not take case out of the statute.

If, however, a person contract to manufacture and deliver at a future time certain goods, at prices then fixed, or at reasonable prices, the essence of the agreement being that he will bestow his own labor and skill upon the manufacture, it is held not to be within the statute. If, on the other hand, the bargain be to deliver goods of a certain description at a future time, and they are not existing at the time of the contract, but the seller does not stipulate to manufacture them himself or procure a particular person to do so, the contract is within the statute. The distinction is, that in the one case the party stipulates that he will himself manufacture the article, and the buyer has the right to require him to do it, and cannot be compelled to take one as good, or even better, if made by another; while, in the other case, the seller only agrees to sell and deliver the article, and is under no obligation to make it himself, but may purchase it of another.

This is the doctrine laid down by SHEPLEY, J., in Hight v. Ripley et al., 19 Me. 137, where the distinction between the cases is well explained, and the doctrine has since been followed by the Maine courts. Abbott v. Gilchrist et al., 38 Me. 260; Pecket v. Swift. 41 id. 68; and Edwards v. Grand Trunk Railway, 48 id. 379. This doctrine of Hight v. Ripley is recognized as sound by Professor Parsons in his work on contracts, vol. 2, 334, where, in a note, the authorities are collected.

This distinction is also recognized in Massachusetts. In Gard ner et al. v. Joy, 9 Met. 179, SHAW, C. J., lays it down thus: "If it is a contract to sell and deliver goods, whether they are then completed or not, it is within the statute. But if it is a contract to

Pitkin v. Noyes.

make and deliver an article or quantity of goods, it is not within the statute." Here the contract was for one hundred boxes of candles by a manufacturer, and, although the candles were not then made, it was held that the contract was within the statute, there being no stipulation by the manufacturer to make them.

In Mixer v. Howarth, 21 Pick. 205, it was held that an agreement by defendant to build a carriage for the plaintiff, or to finish one for him from materials partly wrought, was not within the statute, it being held by SHAW, C. J., that a contract to sell an article then existing, or which the vendor usually has for sale in the course of his business, is within the statute; but it is otherwise if the agreement by a workman be to put materials together and construct an article for the employer, whether at an agreed price or not.

The same general doctrine is recognized in Spencer v. Cone et al., 1 Met. 283, holding that an agreement to make certain machines for another at a specified price is not within the statute, but an agreement for labor and materials. The distinction is also recognized in Waterman v. Meigs et al., 4 Cush. 499, and in Lamb v. Crafts, 12 Met. 356.

In New York the distinction is fully recognized between an agreement for the sale and delivery at a future day of articles then existing, and an agreement to sell and deliver articles not thus manufactured, but to be made afterward, holding that the latter are contracts for work and labor and materials found, and not within the statute; but the New York cases do not appear to mark the difference between the contract of a party to manufacture and deliver an article and his contract to deliver it merely, whether made by himself or another. A contract of sale, though executory, is held to be within the statute. Bennett v. Hall, 10 Johns. 363; Jackson v. Covert, 5 Wend. 141.

The cases that hold that a contract to make an article is not within the statute are Crookshank v. Burrill, 18 Johns. 57, which was an agreement to make the wood-work of a wagon; Sewall v. Fitch, 8 Cow. 215, which was a contract for nails of a particular manufacture, but not then made; Robertson v. Vaughn, 5 Sanf. 1, which was a contract to make and deliver one thousand molasses shooks at a fixed price, which was decided not to be within the statute upon the authority of Sewall v. Fitch. DUER, J., who gave the opinion, thought the case to be within the mischiefs of the statute, and was disposed to question the earlier cases.

Pitkin v. Noyes.

So is Brown v. Winan, 10 Barb. 406, where it was held that a contract for flour to be ground from wheat, bargained for, but not then received, is not within the statute.

So in Donovan v. Wilson, 26 Barb. 138, there was a contract to deliver at a future day an article to be manufactured by defendant, and it was held not to be within the statute.

So is Parker v. Schenck, 28 Barb. 30, and Mead v. Case, 33 id 202, where the agreement was to finish a monument, with the inscription, and deliver it to the other party.

In most of the cases the party himself agreed to manufacture the goods, and that would bring them within the doctrine of Hight v. Ripley, 19 Mass. 137, before cited, although the distinction does not seem to be adverted to.

In Downs v. Ross, 23 Wend. 270, a contract for the sale of seven hundred bushels of wheat, part of which was yet to be threshed and the rest to be cleaned more thoroughly, and all to be delivered in six days, at a price fixed, was held to be a contract for the sale of goods, and within the statute; COWEN, J., dissenting, upon the ground that the question was settled by the early English and New York cases, but saying that were it an open question he would not deny that a contract to manufacture and sell would more correctly be considered a sale within the statute. This case falls within the principle of Garbut v. Watson, 5 B. & Ald. 613, and Smith v. Surnam, 9 B. & C. 561, before cited, where something was to be done by the seller to perfect the goods before delivery.

In Connecticut it was held that an agreement to deliver to a party one hundred sewing machines of a certain description, at a time and place designated, on condition that a part of them not then completed were finished in season by a third person who worked in seller's shop, and with his materials, was a contract of sale, and not for the manufacture of the machines; but even if it were otherwise as to the part not completed, sixty-four in number, still, as the contract was entire, and as it was clear that in respect to the thirtysix it was a sale, the whole, it was said, must be regarded as within the statute. Atwater v. Hough, 29 Conn. 508.

In Phips v. McFarlane, 3 Minn. 109, there was an agreement to furnish materials and fit them for a steam mill, which was portable, and it was held that it was not a contract of sale; but it blends together the price of the thing, and compensation for work and labor and materials, and is not within the statute.

1

Pitkin v. Noyes.

In our own courts, in Gilman et al. v. Hill, 36 N. H. 311, where there was a contract made in August to sell to the plaintiff all the sheep pelts taken off by the seller, who was a butcher, between the 1st of July and the 1st of October, it was held that in respect to all, as well those not then taken off as those that were ready for delivery, it was a contract of sale of goods, and not for work and labor, and was within the statute.

In 2 Kent's Commentaries, 504, 511, note b, the earlier English doctrine is recognized, that if the article sold existed at the time in solido, and was capable of delivery, the contract was within the statute; but otherwise if it was to be afterward manufactured or prepared for delivery by work and labor.

And much the same is Story on Contracts, section 787 and note. In Browne on Frauds, this subject is well considered, and the conclusion reached is expressed in section 308, that, if the contract be essentially a contract for the article manufactured or to be manufactured, the statute applies to it; but, if it is for the manufacture for the work, labor and skill to be bestowed in producing the article, the statute does not apply.

Upon the whole, we are satisfied that if the contract be substantially for the goods, it is within the statute whether they are then manufactured or not; but it is otherwise if the contract be to manufacture and deliver the goods, that is, if the labor and skill of the seller are stipulated for, and make part of the contract.

It is quite obvious that the labor and skill of a workman may be bargained for in this way as well as in any other, his compensation being in the price of the article he makes; and the only question in the particular case is whether the skill and labor of that workman were especially contracted for, so that the employer was entitled to that, and could be obliged to take no other."

In many cases, then, there could be no difficulty in determining whether the labor and skill of the particular person were of the essence of the contract, or whether they were, in the contemplation of the parties, substantially a sale.

If an artist contract to paint the portrait of another, although he is to find the canvas and paints, it would readily be conceded that the substance of the contract was for the skill and labor of the particular artist. So, if a printer contract to print a book for an author, though he is to furnish the paper and ink, as held in Clay v. Gates, 1 H. & N. 73. So, if a carpenter agree to erect a building

Pitkin v. Noyes.

for another upon his land, and find all the materials, it is a contract for work and labor and materials. Courtright v. Stewart, 19 Barb. 455. So it would be if a person carry cloth to a tailor who agrees to make a coat for him, even if the tailor is to find the trimmings.

The contract may be for work and labor simply, for work and labor and materials, or for the sale and delivery of goods, wares and merchandise. In respect to the two last, the line of separation must often be indistinct aud difficult to trace; and we are not able to discover any established rule or criterion by which to distinguish them readily.

The rule established in New York, namely, that if the goods contracted for are not then in existence, but are still to be manufactured, it is to be considered as a contract for work and labor, originated at an early period, in a disposition of the English courts to limit the operation of the statute of frauds, and must obviously exclude from the operation of that statute a large class of cases that are within its mischiefs, and at the same time are, in substance, contracts of sale.

On the other hand, the doctrine of LITTLEDALE, J.,in Smith v. Surnam, 9 B. & C. 561, is, that if the parties contemplate a sale of goods, although the subject-matter at the time of making the contract does not exist in goods, but is to be converted into that state by the seller bestowing work and labor on his own raw materials, it is a case within the statute-holding that it is sufficient, if, at the time of the completion of the contract, the subject-matter be goods, wares and merchandise; and this general doctrine seems to be recognized in Watts v. Friend,10 B. & C.446,per LORD TENTERDEN. So in Ellis, Best & Smith, Excheq. Rep., 272 (23 U. S. Dig. 277), it was held that a contract to make a set of artificial teeth, and fit them to the mouth of the other party, who died before they were completed, was a contract for the sale of goods, and within the statute.

This doctrine of LITTLEDALE, J., brings us round to the question whether, in the contemplation of the parties, the contract was substantially a contract for the sale of goods, or for work and labor.

In Massachusetts a distinction is made between a contract for the sale and delivery of articles which the seller is habitually making, and a contract to make an article pursuant to the agreement, the former being regarded as a contract of sale, but the latter not. Lambv. Crafts, 12 Met. 353. This must be because it was suppposed

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