ÆäÀÌÁö À̹ÌÁö
PDF
ePub

the Statute of Frauds to contracts for the sale of goods which were not made, purchased, ready for delivery or to be delivered, when the contract was made.

[ocr errors]

"In reviewing these decisions," Mr. Benjamin remarks, "it is surprising to find that a rule so satisfactory and apparently so obvious should not have been earlier suggested by some of the eminent judges who had been called on to consider the subject." It was suggested by Littledale, J., though not adopted by the court in Smith v. Surman.2

29. Diversity of View in the United States. - The English cases have been abstracted thus carefully, because their divergent doctrines account for the conflict of judicial opinion on this topic in our various jurisdictions.

30. The Consideration Test, employed in Rondeau v. Wyatt for the purpose of distinguishing Clayton v. Andrews, is applied in Maryland. As early as 1821, the Court of Appeals declared that "the distinction between mere contracts for the sale of goods, where work and labor is to be bestowed on them previous to delivery, and subjects are blended together, some of which are not in the contemplation of the statute, has too long prevailed to be at this day questioned."3 This test also received the sanction of the Minnesota Supreme Court in an early case, contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery."

1 Benjamin on Sales (Bennett's ed., 1899), § 106.

29 B. & C. 561 (1829). "When the contracting 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's bestowing work and labor on his own raw materials, that is a case within the statute. It is sufficient if, at the time of the completion of the contract, the subject-matter be goods, wares, and merchandise. I cannot assent to any case which has decided that such a contract is not within the statute."

3 Eichelburger v. McCauley, 5 H. & J. 213, 215; followed in Bagby v. Walker, 78 Md. 239 (1893); Burdick's Cases on Sales, 29. As Maryland has adopted the Uniform Sales Act, the doctrine stated in the text no longer prevails there. Md. Annotated Code, § 25, p. 1913 (L. 1910, ch. 346, § 24).

Phipps v. McFarlane, 3 Minn. 109, 114, 115 (1859). dislike of the Statute of Frauds appears on pp. 116, 117.

The court's

but appears to have been rejected in a later decision which adopts the essential element test.1

31. The Test of Deliverability won the approval of the South Carolina courts. "It is now the settled rule that when goods contracted for exist in solido and are capable of delivery at the time, it is within the statute; but where they are to be made, or something is to be done to put them in a condition to be delivered, according to the terms of the contract, it is not within the statute." 2

This test is at

32. The Deliverability Test in New York. the bottom of the New York rule, which declares the contract one for sale, if the subject-matter then exists in solido, although something is to be done to fit it for delivery. In the leading New York case on this point, the distinction stated in Cooper v. Elston, and approved in Groves v. Buck," "between a contract for a thing existing in solido and an agreement for a thing not yet made," was spoken of as well settled; and in a later case the consideration test is spoken of as absurd, and Clayton v. Andrews is declared to have been expressly overruled in England.8

6

Some of the later New York cases, it is true, lay particular emphasis on the special order test,' which has been accepted by the courts in several jurisdictions; and which has been incorporated in the Uniform Sales Act.10

33. Special Order Test. This test appears to have influenced Shaw, C. J.," in establishing the Massachusetts rule,

1 Brown v. Sanborn, 21 Minn. 402 (1875).

2 Gadsden v. Lance, McMullan, Eq. 87, 91, 92 (1841).

Approved in Lewis v. Evans, 108 Ia. 296; 79 N. W. 81 (1894).

47 Term R. 14 (1796).

3 M. & S. 178 (1814).

• Crookshank v. Burrell, 18 Johns. 58 (1820); Burdick's Cases on Sales, 32. 74 Burr. 2101 (1767).

8 Downs v. Ross, 23 Wend. 270 (1840); Burdick's Cases on Sales, 33. Hinds v. Kellogg, 37 N. Y. State Rep. 356; 133 N. Y. 536 (1892).

10 N. Y. Sess. L. 1911, ch. 571, § 85 (2). The last clause of this section is as follows: "but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply." 11 Mixer v. Howarth, 21 Pick. 205 (1839); cf. Flint v. Corbett, 6 Daly (N. Y.), 429 (1876).

that a contract for the sale of articles then existing, or such as the vendor, in the ordinary course of his business, manufactures or procures for the general market, whether on hand or not, is one for sale; but a contract for goods to be manufactured especially for the purchaser, and upon his special order, and not for the general market, is one for labor and materials. The same test is at the bottom of the New Jersey rule.2

1

[ocr errors]

34. Upon whose Materials is Labor expended?· The test suggested by Bayley, J., in Smith v. Surman - upon whose materials the labor is to be expended - has commended itself to several State courts. In an action for breach of contract to deliver the whole of defendant's crop of cotton for a certain year, the Supreme Court of Georgia said: "There really is but one exception to the operation of the statute, to wit, contracts for work and labor, and this grows out of the palpable injustice of compelling a man by law in any case to lose the price of his labor. All cases which are not within the reason of this exception are not within the exception itself. . . . Whilst he [the plaintiff in error] was working and laboring to produce this cotton, 'he was working and laboring for himself and not for the defendants.""

4

In an action for breach of contract to cut all butternut trees, on certain land of defendant, into logs and deliver them to plaintiffs, the Supreme Court of Vermont expressly followed Smith v. Surman, saying: "The labor bestowed by the defendant was upon his own property, and was all done in the simple act of delivering it. He was not at work for the plaintiffs in any sense, but for himself."

35. The Essential Ingredient Test. - Other State courts have preferred the essential ingredient test. In a leading case, the

1 Goddard v. Binney, 115 Mass. 450 (1874); Burdick's Cases on Sales, 34; Mass. L. 1908, ch. 237, § 4 (2).

Finney v. Apgar, 31 N. J. L. 266, 270 (1865); and see Puget Sound Depot v. Rigby, 43 Pac. 39; 13 Wash. 264 (1895); N. J. Sess. L. 1907, p. 313, § 4.

3 Cason v. Cheely, 6 Ga. 554, 560, 563 (1849).

Ellison v. Brigham, 38 Vt. 64 (1865); Atwater v. Hough, 29 Conn. 508 (1861), accord. The Uniform Sales Act is ch. 212 of L. 1907 of Conn.

Supreme Court of Maine1 held that a contract to furnish a quantity of hoe shanks, to be made in accordance with certain patterns supplied by the orderer, was not one of sale, saying: 'A contract for the manufacture of an article differs from a contract of sale in this: the person ordering the article to be made is under no obligation to receive as good or even a better one of the like kind purchased from another and not made for him. It is the peculiar skill and labor of the other party, combined with the materials for which he contracted and to which he is entitled." This view seems to prevail in New Hampshire,2 where a contract for the sale of an article thereafter to be produced is treated as one for work and materials, if it appears "that the particular person who is to manufacture it, or the mode and manner or materials, enter into and make part of the contract."

5

36. Doctrine of Lee v. Griffin in the United States. - Inasmuch as most of the State courts had committed themselves to one or other of the foregoing tests, before the decision of Lee v. Griffin, they have been unable to adopt its simple and satisfactory rule. Missouri is a notable exception. This rule was clearly announced in an early Wisconsin case, but was not necessary to its decision, and was rejected in a later case." It was rejected and criticised severely in a recent Vermont decision. After discussing it and the New York rule, the court declared its preference for the Massachusetts rule, under which "the test is, not the non-existence of the article at the time of the bargain, as in New York, nor whether the contract will result in the sale of a chattel, as in England, but whether the goods are such as the vendor, in the ordinary course of business, manufactures or procures for the general market, or whether

1 Hight v. Ripley, 19 Me. 137 (1841).

2 Pitkin v. Noyes, 48 N. H. 294 (1869); Prescott v. Locke, 51 N. H. 94 (1871).

3 1 B. & S. 272 (1861).

Pratt v. Miller, 109 Mo. 78 (1891); and see Prescott v. Locke, 51

N. H. 94 (1871).

5 Hardell v. McClure, 1 Chand. 271 (1849).

Meincke v. Falk, 55 Wis. 427 (1882). The Uniform Sales Act is ch.

549 of L. 1911 of Wis. See § 1684 t - 4.

they are manufactured especially for the vendee, and on his special order, and not for the general market, and for which they are neither intended nor adapted." If the article is to be manufactured on the vendee's special order, the contract is not within the statute, this court declares, although the personal skill and labor of the contractor are not stipulated for. "It is sufficient if the work and labor requisite to such a contract are to be performed by the contractor, or by his procurement and at his expense. " In not a few States the established rule has been based upon more than one of the English

tests.

37. Ultimate Object of Contract must be the Transfer of Title to Goods. Even under the present English rule, if the contract has not for its ultimate object the transfer of the title to specific personal property, it is not one for a sale. Accordingly, an attorney who agrees to prepare a deed, does not make a contract for the sale of the paper or parchment on which his labor is expended; nor does a printer contract to sell the paper and binding of books to the author for whom he prepares them; 2 nor, it is submitted, does the hotel or restaurant keeper contract to sell the viands which he places before his guest, pursuant to an agreement for a meal, any more than a farrier sells the medicines which he supplies in connection with his professional attendance on horses.4

The dissenting opinion of Chief Justice Paxson, in Commonwealth v. Miller, deserves careful consideration. He "could find nothing in the facts to justify the conclusion that there was a sale of the oleomargarine. The individuals referred to entered the defendant's place of business and ordered a meal. It was furnished, but oleomargarine formed no part of it. It is true there was some of that article on the table.

1 Forsyth v. Mann, 68 Vt. 116; 34 At. 481 (1896). See also Heintz v. Burkhard, 29 Ore. 55; 43 Pac. 866 (1896); Burdick's Cases on Sales, 640; In re Gies Estate, Bauscher v. Gies, 160 Mich. 502; 125 N. W. 420 (1910); Parks v. Elmore, 59 Wash. 584, 588; 110 Pac. 381 (1910), applying this doctrine to a contract for the sale of fish to be caught.

2 Lee v. Griffin, 1 B. & S. 272 (1861), opinion of Blackburn, J. ' Comm. v. Miller, 131 Pa. St. 118; 18 At. 938 (1890), contra. • Clark v. Mumford, 3 Camp. 37 (1811).

« ÀÌÀü°è¼Ó »