LYDIA DERBY v. GEORGE W. PHELPS.

NEW HAMPSHIRE SUPERIOR COURT OF JUDICATURE, NOVEMBER TERM, 1822.

[Reported in 2 New Hampshire, 515.]

THIS was an action of assumpsit on a promise of marriage. At the trial here, under the general issue, and a plea of the statute of limitations, the plaintiff proposed to prove, that in A. D. 1811, the defendant, being about to commence the study of his profession, desired the plaintiff to receive his addresses as a suitor, and at the end of about five years, when he expected to be settled in business, to marry him; and that, in pursuance of this offer, his addresses were received, and continued till the defendant's marriage with another lady, in A. D. 1820.

This evidence was objected to, as within the statute of frauds; but having been admitted, a verdict was found for the plaintiff, subject to future consideration on the validity of the above objection.

S. Wilcox and R. Fletcher, for plaintiff.

Phelps, Bell, Chamberlain, and Bartlett, for the defendant.

WOODBURY, J. Our statute "to prevent frauds and perjuries," provides, among other things, "that no action shall be brought whereby to charge any person upon an agreement made upon consideration of marriage, or upon any agreement, that is not to be performed within the space of one year from the time of making it, unless such promise or agreement" " be in writing," &c. 1 N. H. Laws, 178.

The defendant cannot avail himself of the first clause above cited; because, though once decided in Philpott v. Wallet, 3 Lev. 65, that a contract to marry must in all cases be in writing; yet, that decision has since been overruled in Cork v. Baker, 1 Stra. 34, and in Harriunder that arrangement I went to work for Mr. Webendorfer at that time.' If this conversation really was had between the parties on April first, being in effect a distinct renewal of the contract as previously made and agreed upon, it would serve to take the case out of the operation of the statute, notwithstanding that the terms of both contracts were identical. On the second trial the plaintiff further testified that the first contract was made on Sunday and on election day, and that was one of the reasons why, to quote his words, 'I took pains to make the contract on the 1st of April again.' He further testified: 'Q. How did you happen to have this talk that you spoke of, with Mr. Webendorfer on the morning of the first of April? A. Well, because I had heard that Mr. Webendorfer didn't always stand to his agreements, and I thought to have myself secured. I thought I would make a new arrangement on the first of April and everything would be all right. Q. You thought you would repeat the bargain? A. I thought I would make the bargain.'

"The difference in his evidence given on the two trials is vital. On the first trial the suggestion was a mere rehearsal of the terms of the original contract for the purpose of avoiding any misunderstanding as to what they were. On the second trial he testified that the bargain was expressly renewed. Odell v. Webendorfer, 60 N. Y. App. Div. 460, 461." See also Comes v. Lamson, 16 Conn. 246; Sines v. Superintendents, 58 Mich. 503; Turner v. Hochstadter, 7 Hun, 80; Lajos v. Eden Musee Co., 30 N. Y. Supp. 916.

son v. Cage and wife, 1 Ld. Ray. 386; Salk. 24; 5 Mod. 411; Bull. N. P. 280; 2 Eq. Ca. Ab. 248; Skin. 196.

This clause of the statute is now held to reach not mutual promises to marry, but only promises for other things made in consideration of marriage. Bac. Ab. Agreement," C. 3.

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But under the other clause of the statute, we apprehend the objection to the evidence must be adjudged fatal. This was an agreement, which by the terms of it was not to be performed till the expiration of about five years; and hence comes within the very teeth of the statute. Had the tenor of the agreement been, that the contract should be fulfilled on a certain event, which might or might not have happened within a year, but which in fact did not happen till after a year, the agreement would not have been within the statute. 1 Salk. 280; Skin. 326; Stra. 34; Burr. 1278; 1 Bl. Rep. 353; 1 Ld. Ray. 317; Com. Rep. 49; Holt, 326; 3 Salk. 9; 10 John Rep. 244.

But such was not the tenor of it. Nor can this description of contracts be taken out of the statute by the circumstance, that when the original statute of frauds passed under Charles the II., these contracts were not sued at law, but were merely the subject of proceedings to compel a performance of them in the ecclesiastical courts. For numerous kinds of contracts, not then in use and not then prosecuted in the common law courts, have since had birth under the new exigencies and improvements of society, and are all brought to the test of the general provisions of the statute.

In respect to a part performance of this contract, which doubtless, if proved, might cure the absence of any writing (Bac. Ab. “ Agreement," C., and Auths. there cited), the case as saved presents no question of this kind, and, according to our recollection, none such was raised at the trial.

Should this be relied on hereafter as an answer to the statute, it will then be early enough to decide what ought to be considered a part performance of a contract, on whose rites and ceremonies, and their respective importance in perfecting a marriage, so much diversity of opinion exists. See Londonderry v. Chester, 2 N. H. 268.

New trial.1

1 Ullman v. Meyer, 10 Fed. Rep. 241; Paris v. Strong, 51 Ind. 339; Nichols . Weaver, 7 Kan. 373; Barge v. Haslam (Neb.), 88 N. W. Rep. 516. See also McConahey v. Griffey, 82 Ia. 564; Lawrence v. Cooke, 56 Me. 187, 193. Lewis v. Tapman, 90 Md. 294; Brick v. Gannar, 36 Hun, 52, contra. See also Clark v. Pendleton, 20 Conn. 495; Nearing v. Van Fleet, 71 Hun, 137, 151 N. Y. 643.

DECLARATION against the defendant, as the executor of one Frances P., for goods bargained and sold, goods sold and delivered, and for work and labor done and materials provided by the plaintiff as a surgeon-dentist for the said Frances P.

Plea. That the said Frances P. never was indebted as alleged.

The action was brought to recover the sum of 217. for two sets of artificial teeth ordered by the deceased.

At the trial, before CROMPTON, J., at the sittings for Middlesex after Michaelmas Term, 1860, it was proved by the plaintiff that he had, in pursuance of an order from the deceased, prepared a model of her mouth and made two sets of artificial teeth; as soon as they were ready he wrote a letter to the deceased, requesting her to appoint a day when he could see her for the purpose of fitting them. To this communication the deceased replied as follows:

"MY DEAR SIR. I regret, after your kind effort to oblige me, my health will prevent my taking advantage of the early day. I fear I may not be able for some days. FRANCES P."

Yours, &c.,

Shortly after writing the above letter, Frances P. died. On these facts the defendant's counsel contended that the plaintiff ought to be nonsuited, on the ground that there was no evidence of a delivery and acceptance of the goods by the deceased, nor any memorandum in writing of a contract within the meaning of the 17th section of the Statute of Frauds, 29, Car. II. c. 3., and the learned Judge was of that opinion. The plaintiff's counsel then contended that, on the authority of Clay v. Yates, 1 H. & N. 73, the plaintiff could recover in the action on the count for work and labor done and materials provided. The learned Judge declined to nonsuit, and directed a verdict for the amount claimed to be entered for the plaintiff, with leave to the defendant to move to enter a nonsuit or verdict.

In Hilary Term following, a rule nisi having been obtained accordingly,

Patchett now showed cause.

Griffits, in support of the rule, was not called upon to argue. CROMPTON, J. I think that this rule ought to be made absolute. On the second point I am of the same opinion as I was at the trial. There is not any sufficient memorandum in writing of a contract to satisfy the Statute of Frauds. The case decided in the House of

Lords, to which reference has been made during the argument, is clearly distinguishable. That case only decided that if a document, which is silent as to the particulars of a contract, refers to another document which contains such particulars, parol evidence is admissible for the purpose of showing what document is referred to. Assuming, in this case, that the two documents were sufficiently connected, still there would not be any sufficient evidence of the contract. The contract in question was to deliver some particular teeth to be made in a particular way, but these letters do not refer to any particular bargain, nor in any manner disclose its terms.

The main question which arose at the trial was, whether the contract in the second count could be treated as one for work and labour, or whether it was a contract for goods sold and delivered. The distinction between these two causes 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 labour, 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 a 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 of the mouth and fitting of the teeth being analogous to the measurement and fitting of the garment.

HILL, J. I am of the same opinion. I think that the decision in Clay v. Yates, supra, is perfectly right. That was not a case in which a party ordered a chattel of another which was afterwards to be made and delivered, but a case in which the subject-matter of the contract was the exercise of skill and labor. Wherever a contract is entered into for the manufacture of a chattel, there the subject-matter of the contract is the sale and delivery of the chattel, and the party supplying it cannot recover for work and labor. Atkinson v. Bell, 8 B. & C. 277, is, in my opinion, good law, with the exception of the dictum of Bayley, J., which is repudiated by Maule, J. in Grafton v. Armitage, 2 C. B. 339, where he says: "In order to sustain a count for work and labor, it is not necessary that the work and labor should be performed upon materials that are the property of the plaintiff." And Tindal, C. J., in his judgment in the same case, p. 340, points

out that in the application of the observations of Bayley, J., regard must be had to the particular facts of the case. In every other respect, therefore, the case of Atkinson v. Bell, 8 B. & C. 277, is law. I think that these authorities are a complete answer to the point taken at the trial on behalf of the plaintiff.

When, however, the facts of this case are looked at, I cannot see how, wholly irrespective of the question arising under the Statute of Frauds, this action can be maintained. The contract entered into by the plaintiff with the deceased was to supply two sets of teeth, which were to be made for her and fitted to her mouth, and then to be paid for. Through no default on her part, she having died, they never were fitted: no action can therefore be brought by the plaintiff.

BLACKBURN, J. On the second point, I am of 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 Atkinson v. Bell, supra, the contract, if carried out, would have resulted in the sale of a chattel. In Grafton v. Armitage, 2 C. B. 340, Tindal, C. J., lays down this very principle. He draws a distinction between the cases of Atkinson v. Bell, supra, and that before him. The reason he gives is that, in the former case, "the substance of the contract was goods to be sold and delivered by the one party to the other:" in the latter there never was any intention to make anything that could properly become the subject of an action for goods sold and delivered." I think that distinction reconciles those two cases, and the decision of Clay v. Yates, 1 H. & N. 73, is not inconsistent with them. 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,

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