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at the time of the contract. In the following year, however, a contradictory decision was reached in Wilks v. Atkinson. The defendant had contracted to sell to the plaintiff a quantity of oil to be pressed from seed which the defendant had. This was held to be a contract of sale of goods and did not, therefore, require a revenue stamp. “A baker," said the court, “agrees to produce me a loaf tomorrow; he has not the bread, but he has the flour, and is to make it into bread, and deliver it. How often does a butcher contract to deliver meat, when he has not the meat, and the beast is not yet killed? It is out of all common sense to say this is not a contract rel ing to goods, wares, and merchandises.'»9

In Clay v. Yeates10 the contract sued on was for the printing of a book, the printer to furnish the paper. This was held not to be a contract of sale, but one to do work and labor and, therefore, not required to be in writing.

In Lee v. Griffin,"1 however, one of the most frequently cited cases on the point, Clay v. Yeates was practically overruled. The contract was for the manufacture and fitting of a set of false teeth. It was held to be a contract for the sale of goods, and therefore required to be in writing. Justice Blackburn laid down the general proposition that “If the contract be such that, when carried out, it would result in the sale of a chattel, the party can not 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 can not sue for goods sold and delivered.This “rule" appears to furnish a real test, i. e., if the contract will result in the transfer of title to a chattel, it is a contract of sale, regardless of the relative value of the chattel, as such, and of the personal element involved in its production. But, unfortunately, Blackburn destroys its apparent certainty in his next sentence, saying that the preparation by an attorney of a deed is a contract of work and labor, despite the fact that the written paper, when done, is a chattel the ownership of which is transferred from the attorney to the client. However, the rule as stated is still the English rule and gives a wide scope to the meaning of “contracts of sale” as used in the Statute.

8–6 Taunton 11 (1815).

9-Accord, Garbutt v. Watson, 5 Barn. & Ald. 613 (1833), sale of flour to be ground from wheat; Smith v. Surman, 9 Barn. & Cress.,

561 (1829), sale of timber to be made from seller's own trees.

10—1 Hurl. & Norm. 73 (1856). 11–1 Best & Smith, 272 (1861). 12–Compounding of a prescription by a druggist and transfer of title to the compound is a "sale" and not a mere contract for "personal service." Rex V. Wood Green Profiteering Com. [1920], K. B. 55, 89 L. J. R. 55; furnishing of coffee in a restaurant is a "sale," Rex v. Birmingham Profiteering Com. [1920], K. B. 57, 89 L. J. R. 59; contract to paint a portrait held a contract for sale, Isaacs v. Hardy, 1 Cab. & E. 287.

The most satisfactory statement of the English rule seems to be that there is a sale, within the Statute of Frauds, when the contract involves a transfer of title to a chattel which has an intrinsic value of its own sufficient to be recognized by the courts.

12

New York Rule.—The courts of the United States, although recognizing that the Statute applies to executory contracts, are greatly at variance as to the distinction between a contract of sale and one for work and labor. The New York courts early took the opposite extreme from the view of the English courts. They admit that coincident passing of title is not necessary to bring a contract within the Statute, nor is even the possibility of immediate passing of title necessary. The Statute applies to contracts to pass title as well as to those by which title has been passed.13 But while thus overruling and discard

.

13–Irwin v. Knox, 10 Johns. (N. Y.) 364; Jacksonv. Covert's Admrs., 5 Wend. (N. Y.) 139; Downs & Skillinger V. Ross, 23 id. 270; Chamberlain v. Jones, 52 N. Y. S. 998, contract to sell bonds not then owned by seller held a contract of sale; Nichols v. Clark, 81 N. Y. S. 262; Juilliard v. Trokie, 124 N. Y. S. 121, even though the goods be not in existence, if the seller is not himself the manufacturer,

16

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ing the reasons stated in Towers v. Osborne?4 and Clayton v. Andrews', the New York courts do adopt the conclusions of these cases, as explained in Rondeau v. Wyatt. Thus, Sewall v. Fitch involved a contract by the defendant to sell 300 kegs of nails of a specified kind. The defendant had no nails at hand but was to manufacture them. The court held that this contract did not need to be in writing as it was not a contract for the sale of goods, but one for work and labor. Referring to Towers v. Osborne and Clayton v. Andrews the court said “those cases were rightly determined though upon a wrong principle.":18

Complementary to this rule are the decisions that if the thing sold does exist at the time of the contract it is a contract of sale within the Statute despite the fact that something is still to be done to put the thing in a deliverable condition, or to make it fit for use.

Therefore the rule in New York, often called the “New York rule," appears to be that a contract, to be a contract of sale within the Statute, must be for the transfer, whether immediately or in the future, of a chattel in existence at the time of the contract.19

14–1 Strange 506, ante.
15—4 Burrows 2101.
16—2 H. Bl. 63, ante.
17—8 Cow. (N. Y.) 215 (1828).

18–Higgins v. Murray, 73 N. Y. 252, contract to make a circustent; Gerli v. Metzger & Co., 99 N. Y. S. 858, 51 Misc. 46; Myers Bros. Drug Co. v. McKinney, 121 N. Y. S. 845.

19—While this is clearly the idea of the rule and is in substance the common judicial statement, it is in one application in. accurate. The fact that the seller does not himself own the goods at the time of his contract, and therefore, can not deliver immediate title, does not prevent the contract from being one of sale.

But, furthermore, unless the seller himself is to manufacture them, the courts do not inquire where he is to get them. It is immaterial that he must have them manufactured by a third person; his con. tract with the buyer is treated as a contract of sale. Thus it happens that even the New York courts do occasionally treat what is in reality a contract for goods not in existence as a contract of sale. Juilliard v. Trokie, 124 N. Y. S. 121; Dow v. Sehloss, 12 Daly 533; Evarts V. Thorn, 11 N. Y. State Rep. 668; Pitkin v. Noyes, 48 N. H. 294; 2 Am. Rep. 218; cf. Prescott v. Locke, 51 N. H. 94, 12 Am. Rep. 55; Palewski v, Har. greaves, 47 N. J. L. 334; 54 Am. Rep. 162. But compare, Webster v. Zielly, 52 Barb. (N. Y.) 482. This subject is discussed in the note in 19 A. & E. Ann. Cas. 1298.

But this rule, like its opposite English rule, leaves a modicum of uncertainty in its application. As interpreted by the courts there may be uncertainty as to just what the chattel is that a particular contract deals with. In Kellogg v. Witherhead20 the defendant had agreed to buy “all the hams aud shoulders plaintiffs would smoke” at 10c a pound. The agreement was not in writing. Obviously the question was whether it was a contract for hams, to be smoked by the plaintiff, or a contract for smoked hams. The court held that it was the former. “This was a contract for sale, not for work and labor. The plaintiffs were not to make the hams; they were to smoke them."21 So, in Fitzsimmons v. Woodruff22 the contract was for a mantel selected at the plaintiff's store, but which the plaintiff was to set up in the buyer's house with certain alterations in it. It was held a contract for sale of the mantel as it stood.

On the other hand, in Mead v. Case23 the defendant had agreed to take a certain stone monument then in the plaintiff's shop, but which the plaintiff was to polish and letter with the appropriate names. This was held to be a contract to make a polished and lettered monument and therefore not a contract of sale.

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-Reason of the Different Rules. The reason for the difference between the English rule and that of New

20—6 Thompson & Cook (N. Y.) 525.

21-In Bates v. Coster, 3 Thompson & Cook (N. Y.) 580, the plaintiff offered to sell a colt. The defendant replied, “If you will castrate him, when he is well I will give you $1,000 for him. The court held that the contract was for the existing animal, to be

gelded at seller's risk rather than
for the gelded animal. Downs v.
Ross, 23 Wend. (N. Y.) 270,
wheat, to be threshed and
cleaned; Flint v. Corbitt, 6 Daly
(N. Y.) 429; Brewster v. Tay-
lor, 63 N. Y. 587; sale of a
wagon to be fitted with a new
pole; Seymour v. Davis, 4 Super.
Ct. (2 Sandf.) 239, cider to be re-
fined; Cooke v. Millard, 65 N. Y.
352.

22—1 Thompson & Cook 3.
23–33 Barb. 202.

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York is not expressed in the decisions. The opinions are founded on precedent, or original statement that a transaction is or is not a “sale," rather than on any logical reasoning as to the meaning and application of the Statute. The customary definition of a “sale” is, in effect, a transfer of the ownership of specific personal property from one person to another for a consideration valued in money. By this accepted definition, every contract for a monetary consideration to make a chattel for another, which contemplates the ultimate transfer of ownership of the chattel when made, to the one for whom it is made, is undeniably a contract of “sale”. It may be primarily an agreement to do work, but since it contemplates also the transfer of ownership of the thing to be made it is, in that respect, a contract to sell the article. In the literal interpretation of the Statute, therefore, the English rule is clearly the more logical.

Moreover, as is indicated in other cases, the real purpose of the Statute is in dispute. Its preamble reads, For prevention of many fraudulent practices commonly endeavored to be upheld by perjury and subornation of perjury.” The tendency to perjury would seem to be just as great in regard to a contract whose primary purpose is the manufacture of a chattel, ultimately to be transferred to the other party, as it would be in regard to a contract whose primary and immediate purpose is the transfer of ownership. In this view of the Statute, the English rule, which brings all such contracts within the Statute, seems clearly the better.

On the other hand, Blackstone's sole comment on the Statute is that “The Statute of frauds and perjuries (was) a great and necessary security to private property.”24 If its purpose is to protect the ownership of property, there is justification for interpreting its use of “contract of sale” as meaning a contract whose primary purpose is the transfer of title of existing property.

24-Commentaries, Bk. 4, p. 440.

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