Cooke v. Millard.

much fluctuation of opinion, but must now be regarded as settled. The leading case upon this point is Lee v. Griffin, 1 Best & Smith, 272; Benjamin on Sales, 77. The action was there brought by a dentist to recover twenty-one pounds sterling for two sets of artificial teeth, made for a deceased lady of whose estate the defendant was executor. The court held this to be the sale of a chattel within the statute of frauds. BLACKBURN, J., stated the principle of the decision in a clear manner : "If the contract be such that it will result in the sale of a chattel, then it constitutes a sale, but if the work and labor be bestowed in such a manner as that the result would not be any thing which could properly be said to be the subject of sale, the action is for work and labor."

The Massachusetts rule, as applicable to goods manufactured or modified after the bargain for them is made, mainly regards the point whether the products can, at the time stipulated for delivery, be regarded as "goods, wares and merchandise," in the sense of being generally marketable commodities, made by the manufacturer. In that respect it agrees with the English rule. The test is not the non-existence of the commodity at the time of the bargain. It is,' rather, whether the manufacturer produces the article in the general course of his business or as the result of a special order. Goddard v. Binney, 115 Mass. 450; S. C., 15 Am. Rep. 112. In this very recent case, the result of their decisions is stated in the following terms: "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 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." Under this rule, it was held in Gardner v. Joy, 9 Metc. 177, that a contract to buy a certain number of boxes of candles at a fixed price per pound, which the vendor said he would manufacture and deliver in about three months, was held to be a contract of sale. On the other hand, in Goddard v. Binney, supra, the contract with a carriage manufacturer was, that he should make a buggy for the person ordering it, that the color of the lining should be drab, and the outside seat of cane, and have on it the monogram and initials of the party for whom it was made. This was held not to be a con

Cooke v. Millard.

tract of sale within the statute. See, also, Mixer v. Howarth, 21 Pick. 205; Lamb v. Crafts, 12 Metc. 353; Spencer v. Cone, 1 id. 238. The New York rule is still different. It is held here by a long course of decisions, that an agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered, such as flour from wheat not yet ground, or nails to be made from iron belonging to the manufacturer, is not a contract of sale. The New York rule lays stress on the word sale. There must be a sale at the time the contract is made. The latest and most authoritative expression of the rule is found in a recent case in this court. Parsons v. Loucks, 48 N. Y. 17, 19; S. C., 8 Am. Rep. 517. The contract between Parsons v. Loucks, in this State, on the one hand, and Lee v. Griffin, supra, in England, on the other, is, that in the former case the word sale refers to the time of entering into the contract, while in the latter, reference is had to the time of the delivery, as contemplated by the parties. If at that time it is a chattel, it is enough according to the English rule. Other cases in this State agreeing with Parsons v. Loucks, are Crookshank v. Burrel, 18 Johns. 58; Sewall v. Fitch, 8 Cow. 215; Robertson v. Vaughn, 5 Sandf. S. C. 1; Parker v. Schenck, 28 Barb. 38. These cases are based on certain old decisions in England, such as Towers v. Osborne, 1 Strange, 506, and Clayton v. Andrews, 4 Burr. 2101, which have been wholly discarded in that country.

The case at bar does not fall within the rule in Parsons v. Loucks. The facts of that case were, that a manufacturer agreed to make for the other party to the contract two tons of book paper. The paper was not in existence, and so far as it appears, not even the rags, "except so far as such existence may be argued from the fact that matter is indestructible." So in Sewali v. Fitch, supra, the nails which were the subject of the contract were not then wrought out, but were to be made and delivered at a future day.

Nothing of this kind is found in the present case. The lumber, with the possible exception of the clapboards, was all in existence when the contract was made. It only needed to be prepared for the purchaser-dressed and put in a condition to fill his order. The court, accordingly, is not hampered in the disposition of this cause by authority, but may proceed upon principle.

Were this subject now open to full discussion upon principle, no more convenient and easily understood rule could be adopted

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than that enunciated in Lee v. Griffin. It is at once so philosophi cal, and so readily comprehensible, that it is a matter of surprise that it should have been first announced at so late a stage in the discussion of the statute. It is too late to adopt it in full in this State. So far as authoritative decisions have gone, they must be respected even at the expense of sound principle. The court, however, in view of the present state of the law, should plant itself, so far as it is not precluded from doing so by authority, upon some clearly intelligible ground, and introduce no more nice and perplexing distinctions. I think that the true rule to be applied in this State is, that when the chattel is in existence, so as not to be governed by Parsons v. Loucks, supra, the contract should be deemed to be one of sale, even though it may have been ordered from a seller who is to do some work upon it to adapt it to the uses of the purchaser. Such a rule makes but a single distinction, and that is between existing and non-existing chattels. There will still be border cases where it will be difficult to draw the line, and to discover whether the chattels are in existence or not. The mass of the cases will, however, readily be classified. If, on further discussion, the rule in Lee v. Griffin should be found most desirable as applicable to both kinds of transactions, a proper case will be presented for the consideration of the legislature.

The view that this case is one of sale is sustained by Smith v. The Central Railroad Company, 4 Keyes, 180; S. C., 4 Abb. App. Dec. 262; and by Downs & Skillinger v. Ross, 23 Wend. 270.

In the first of these cases, there was a contract for the sale and delivery of a quantity of wood, to be cut from trees standing on the plaintiff's land. The court held that it could not be treated as an agreement for work and labor in manufacturing fire-wood out of standing trees. The cases already cited were distinguished in the fact that no change in the thing sold and to be delivered was contemplated, and that the transaction could be regarded as a sale in perfect consistency with the cases which hold that where the substance of the contract consists in the act of converting materials into a new and wholly different article, it is an agreement for work and labor. It was further considered that the case of Towers v. Osborne, 1 Strange, 506, where an agreement for the manufacture of a chariot was a contract for work and labor, was extreme in its nature, and was not to be carried any further. P. 200. The cases of Garbutt v. Watson, 5 B. & A. 613, and Smith v. Surman,

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9 B. & C. 561, were cited with approval. In Garbutt v. Watson, a sale of flour by a miller was held within the statute, although not ground when the bargain was made.

In Downs, etc., v. Ross, there was a contract for the sale of 750 bushels of wheat, 250 of the quantity being in a granary, and the residue unthreshed, but which the vendor agreed to get ready and deliver. The court held the contract to be within the statute of frauds, notwithstanding that the act of threshing was to be done by the vendor. The rule that governed the court was, that if the thing sold exist at the time in solido, the mere fact that something remains to be done to put it in a marketable condition will not take the contract out of the operation of the statute. P. 272. This proposition is in marked contrast to the view expressed by COWEN, J., in a dissenting opinion. His theory was, that where the article which forms the subject of sale is understood by the parties to be defective in any particular which demands the finishing labor of the vendor in order to satisfy the bargain, it is a contract for work and labor, and not of sale. These two theories (where the goods exist at the time of sale) have nowhere been more tersely and distinctly stated than in the conflicting opinions of BRONSON and CowEN, JJ., in this case. See, also, Courtright v. Stewart, 19 Barb. 455.

The fallacy in the proposition of COWEN, J., is in assuming that there is any "work and labor" done for the vendee. All the work and labor is done on the vendor's property to put it in a condition to enable him to sell it. His compensation for it is found in the price of the goods sold. It is a juggle of words to call this "a mixed contract of sale, and work and labor." When the goods leave the vendor's hands and pass over to the vendee, they pass as chattels under an executed contract of sale.

mained to be done the contract was executory.

While any thing re

There is abundance

of authority for maintaining that a contract in its origin executory may, by the performance of acts under its terms, by one of the parties, become, in the end, executed. Rohde v. Thwaites, 3 B. & C. 388; Benjamin on Sales, ch. 5, and cases cited.

The cases of Donovan v. Wilson, 26 Barb. 138, and Parker v. Schenck, 28 id. 38, are to be upheld as falling within the principle of Parsons v. Loucks, supra. Both of these cases concerned articles not in existence, but to be produced by the manufacturer; in one case beer was to be manufactured, and in the other a brass pump. VOL. XXII.-79

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So in Passaic Manufacturing Company, 3 Daly, 495, the contract was for the manufacture and delivery of fifty warps. None of these cases were in existence when the order was received. While the case appears to fall within the rule of Parsons v. Loucks, the eminent judge who wrote an elaborate opinion expressing the views of the court, would seem to rely upon the Massachusetts rule rather than our own. Whatever view might be entertained of the sound ness of that distinction it is now too late to adopt it here, and the case cannot be sustained on that ground.

The only case in our reports appearing to stand in the way of the conclusion arrived at in this cause is Mead v. Case, 33 Barb. 202. The court in that case recognized the distinction herein upheld. The only doubt about the case is, whether the court correctly applied the rule to the facts. These were that several pieces of marble put together in the form of a monument were standing in the yard of a marble cutter. That person agreed with a buyer to polish, letter and finish the article as a monument, and to dispose of it for an entire price-$200. The court held that there was no monument in existence at the time of the bargain. There were pieces of stone in the similitude of a monument, and that was all.

It is unnecessary to quarrel with this case. If unsound, it is only a case of misapplication of an established rule. If sound, it is a so-called "border case," showing the refinements which are likely to arise in applying to various transactions the rule adopted in Sewall v. Fitch, and kindred cases. It is proper, however, to say that the notion that such an arrangement of marble placed in a cemetery over a grave cannot be regarded as a monument, in the absence of an inscription, seems highly strained. Then there could not be a memorial church without an inscription. Then it could not have been said of Sir Christopher Wren, in his relation to one of his great architectural productions, "Si quæris monumentum, circumspice." It would seem to be enough if the monument reminds the passer-by of him whom it is intended to commemorate, and this might be by tradition, inscriptions on adjoining or neighboring objects, or otherwise

In the view of these principles, the defendants had the right to set up the statute of frauds. I think that this was so, even as to the clapboards. Although not strictly in existence as clapboards, they fall within the rule in Smith v. Central Railroad Company