The main question which arose at the trial was, whether the contract in the second count could be treated as one for work and labor, or whether it was a contract for goods sold and delivered. The distinction between these two courses of action is sometimes very fine; but where the contract is for a chattel to be made and delivered, it clearly is a contract for the sale of goods. There are some cases in which the supply of the materials is ancillary to the contract, as in the case of a printer supplying the paper on which a book is printed. In such a case an action might perhaps be brought for work and labor done and materials provided, as it could hardly be said that the subject matter of the contract was the sale of a chattel; perhaps it is more in the nature of a contract merely to exercise skill and labor. Clay v. Yates, 1 H & N. 73, turned on its own peculiar circumstances. I entertain some doubt as to the correctness of that decision; but I certainly do not agree to the proposition that the value of the skill and labor as compared to that of the material supplied is a criterion by which to decide whether the contract be for work and labor, or for the sale of the chattel. Here however, the subject matter of the contract was the supply of goods. The case bears a strong resemblance to that of a tailor supplying a coat, the measurement and fitting of the garment.

BLACKBURN, J. On the second point, I am of the opinion that the letter is not a sufficient memorandum in writing to take the case out of the statute of frauds.

On the other point, the question is whether the contract was one for the sale of goods or for work and labor. I think that in all cases, in order to ascertain whether the action ought to be brought for goods sold and delivered, or for work and labor done and materials provided, we must look at the particular contract entered into between the parties. If the contract be such that, when carried out, it would result in the sale of a chattel, the party cannot sue for work and labor; but if the result of the contract is that the party has done work and labor which ends in nothing that can become the subject of a sale, the party cannot sue for goods sold and delivered. The case of an attorney employed to prepare a deed is an illustration of this latter proposition. It cannot be said that the paper and ink he uses in the preparation of the deed are goods sold and delivered. The case of a printer printing a book would most probably fall within the same category.

In the present case the contract was to deliver a thing which, when completed, would have resulted in the sale of a chattel; in other words the substance of the contract was for goods sold and delivered. I do

not think that the test to apply to these cases is whether the value of the work exceeds that of the materials used in its execution; for, if a sculptor were employed to execute a work of art, greatly as his skill and labor, supposing it to be of the highest description, might exceed the value of the marble on which he worked, the contract would, in my opinion, nevertheless, be a contract for the sale of a chattel. Rule absolute.

CONTRACT TO MAKE A WAGON IS FOR WORK AND LABOR AND IS NOT WITHIN THE STATUTE

CROOKSHANK V. BURRELL

18 Johnson (N. Y.) 58 (1820)

In error, on certiorari to a justice's court. B. declared against C. before the justice on a contract between him and the defendant, whereby it was agreed that B. should make the wood-work of a wagon, which the defendant was to pay for in lambs at one dollar a head. The plaintiff claimed twenty-five dollars. The agreement was proved, and that the plaintiff had made the wagon within the period limited. It was also proved that the defendant was to come for the wagon, and pay for it in lambs at one dollar apiece. The judgment was for twenty-four dollars and ninety-four cents, the plaintiff having remitted six cents; and the objections were; first, that the contract was within the statute of frauds, second, that the plaintiff ought to have tendered the wagon.

SPENCER, C. J., delivered the opinion of the court. It nowhere appears that the value of the wagon or the price of it was ten pounds or upwards. The plaintiff claimed to recover twenty-five dollars; but this does not denote the price of the wagon, and it is mere matter of form. But, admitting that the price agreed on was twenty-five dollars, still it would not be a case within the statute. In Bennett v. Hull, 10 Johns. Rep. 364, we decided that the statute applied to executory as well as other contracts; and we recognized the cases of Rondeau v. Wyatt, 2 H. Bl. 63, and Cooper v. Elston, 7 Term Rep. 14, as containing a just and sound construction of the statute. In giving the opinions in those cases, the judges referred to the case of Towers v. Osborne, Str. 506, with approbation. In that case, the dependant bespoke a chariot, and after it was made for him refused to take it; and Pratt, C. J., ruled that it was not a case within the statute. In Clayton v. Andrews, 4 Burr. 2101, it was decided that an agreement to deliver wheat, understood to be unthrashed, was not within the statute. The distinction taken by Lord Loughborough in Rondeau v. Wyatt, and by the

judges who gave opinions seriatim in Cooper v. Elston, was between a contract for a thing existing in solido, and an agreement for a thing not yet made, to be delivered at a future day. The contract in the latter case they considered not to be a contract for the sale and purchase of goods, but a contract for a thing existing in solido, and an agreement for a thing not yet made, to be delivered at a future day.

The contract in the latter case they considered not to be a contract for the sale and purchase of goods, but a contract for work and labor merely. However refined this distinction may be, it is well settled, and it is now too late to question it.

It appears that the defendant was to come after the wagon, and that it was completed at the time agreed upon. It is necessarily to be inferred that, when he came for the wagon, he was to pay for it in the mode agreed upon; and of course he was to drive his lambs to the plaintiff. We are of the opinion that the judgment must be affirmed.

Judgment affirmed.

SPECIAL CONTRACT-SALE OF GOODS OR CONTRACT FOR LABOR

GODDARD V. BINNEY

115 Mass. 450 (1874)

Action for the price of a buggy. Defendant gave an order to plaintiff, a carriage manufacturer, for a buggy, with special directions as to materials and style of finish, to be done in about four months. Before defendant took it from the plaintiff's premises it was destroyed by fire without plaintiff's fault. The other important facts appear in the opinion.

AMES, J. Whether an agreement like that described in this report should be considered as a contract for the sale of goods, within the meaning of the statute of frauds, or a contract for labor, services, and materials, and therefore not within that statute, is a question upon which there is a conflict of authority. (After stating the New York rule and the modern English rule, the Judge proceeded.)

In this Commonwealth a rule avoiding both these extremes was established in Mixer v. Howarth, 21 Pick. 205, and has been recognized and affirmed in repeated decisions of more recent date. The effect of these decisions we understand to be this, namely, that a contract for the sale of articles then existing or such as the vendor in the ordinary course of his business manufacturer or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods to

which the statute applies. But on the other hand, if the goods are to be manufactured especially for the purchaser, and upon his special order, and not for the general market, the case is not within the statute. Spencer v. Cone, 1 Met. 353, "we believe is now well understood. When a person stipulates for the future sale of articles, which he is habitually making, and which at the time are not made or finished, it is essentially a contract of sale, and not a contract for labor; otherwise, when the article is made pursuant to the agreement." In Gardner v. Joy, 9 Met. 177, a contract to buy a certain number of boxes of candles at a fixed rate per pound, which the vendor said he would manufacture and deliver in about three months, was held to be a contract of sale, and within the statute. To the same general effect are Waterman v. Meigs, 4 Cush. 497, and Clark v. Nichols, 107 Mass. 547. It is true that, "in the infinitely various shades of different contracts," there is some practical difficulty in disposing of the questions that arise under that section of the statute. Gen. Sts. c. 105, 5. But we see no ground for holding that there is any uncertainty in the rule itself. On the contrary, its correctness and justice are clearly implied or expressly affirmed in all of our decisions upon the subject matter. It is proper to say also that the present case is a much stronger one than Mixer v. Howarth. In this case the carriage was not only built for the defendant, but in conformity in some respects with his directions, and at his request was marked with his initials. It was neither intended nor adapted for the general market. As we are by no means prepared to overrule the decision in that case, we must therefore hold that the statute of frauds does not apply to the contract which the plaintiff is seeking to enforce in this action.

Independently of that statute, and in cases to which it does not apply, it is well settled that as between the immediate parties property in personal chattels may pass by bargain and sale, without actual delivery. If the parties have agreed upon the specific thing that is sold and the price that the buyer is to pay for it, and nothing remains to be done but that the buyer should pay the price and take the same thing, the property passes to the buyer, and with it the risk of loss by fire or any other accident. The appropriation of the chattel to the buyer is equivalent for that purpose to his acceptance of possession. Dixon v. Yates, 5 B. & Ad. 313, 340. The property may well be in the buyer, though the right of possession, or lien for the price is in the seller. There could in fact be no such lien, without a change of ownership. No man can be said to have a lien, in the proper sense of the term, upon his own property, and the seller's lien can only be upon the buyer's property. It has often been decided that assumpsit for the price of goods bargained

and sold can be maintained where the goods have been selected by the buyer and set apart for him by the seller, though not actually delivered to him, and where nothing remains to be done except that the buyer should pay the agreed price. In such a state of things the property vests in him, and with it the risk of any accident that may happen to the goods in the mean time. Noy's Maxims, 89; 2 Kent, Com. (12th ed.) 492; Bloxam v. Sanders, 4 B. & C. 941; Tarling v. Baxter, 6 B. & C. 360; Hinde v. Whitehouse, 7 East, 571; Macomber v. Parker, 13 Pick. 175, 183; Morse v. Sherman, 106 Mass. 430.

In the present case nothing remained to be done on the part of the plaintiff. The price had been agreed upon; the specific chattel had been finished according to order, set apart and appropriated for the defendant, and marked with his initials. The plaintiff had not undertaken to deliver it elsewhere than on his own premises. He gave notice that it was finished, and presented his bill to the defendant, who promised. to pay it soon. He had previously requested that the carriage should not be sold, a request which substantially is equivalent to asking the plaintiff to keep it for him when finished. Without contending that these circumstances amount to a delivery and acceptance within the statute of frauds, the plaintiff may well claim that enough has been done, in a case not within that statute, to vest the general ownership in the defendant, and to cast upon him the risk of loss by fire, while the chattel remained in the plaintiff's possession.

According to the terms of the reservation, the verdict must be set. aside, and

Judgment entered for the plaintiff.

THE EXPRESSION "GOODS, WARES, AND MERCHANDISE" IS EQUIVALENT TO "PERSONAL PROPERTY" AND INCLUDES A MORTGAGE ON REAL ESTATE

GREENWOOD V. LAWR

55 N. J. L. 168 (1892)

VAN SYCKEL, J. Law, the plaintiff below, gave to Greenwood, the defendant, a mortgage upon lands in this state for the sum of $3,700. Law alleged that Greenwood entered into a parol agreement with him, to assign him this mortgage for the sum of $3,000, and brought this suit to recover damages for the refusal of Greenwood to execute said parol agreement.

On the trial below, a motion was made to nonsuit the plaintiff, on the ground that the alleged agreement was within the statute of frauds.