CHAPTER VIII

STATUTE OF FRAUDS

29 Car. II, c. 3, § 17.

"And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June [A. D. 1677] no contract for the sale of any goods, wares, and merchandises, for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." 1

SECTION 1.-"CONTRACT FOR THE SALE OF GOODS"

COOKE et al. v. MILLARD et al.

(Commission of Appeals of New York, 1875. 65 N. Y. 352, 22 Am. Rep. 619.) DWIGHT, C. The question is thus reduced to the following proposition: Is a contract which is, in form, one of sale of lumber then in existence for a fixed price, where the seller agrees to put it into a state of fitness to fill the order of the purchaser, his work being included in the price, in fact a contract for work and labor and not one of sale, and accordingly not within the statute of frauds?

The New York statute is made applicable to the "sale of any goods, chattels or things in action," for the price of $50 or more. The words "goods and chattels" are, literally taken, probably more comprehensive than the expressions in the English statute, “goods, wares and merchandise." It will be assumed however in this discussion, that they are equivalent.

There are at least three distinct views as to the meaning of the words in the statute. These may be called, for the sake of convenience, the English, the Massachusetts and the New York rules, as representing the decisions in the respective courts.

The English rule lays especial stress upon the point, whether the articles bargained for can be regarded as goods capable of sale by the

1 Compare Sale of Goods Act, § 4 (1), and Sales Act, § 4 (1). And see Stephen & Pollock, The Seventeenth Section of the Statute of Frauds, 1 Law Quarterly Rev. 1.

2 The statement of facts and part of the opinion are omitted.

WOODW.SALES (2D ED.)-42

professed seller at the time of delivery, without any reference to the inquiry whether they were in existence at the time of the contract or not. If a manufacturer is to produce an article which at the time of the delivery could be the subject of sale by him, the case is within the statute of frauds. The rule excludes all cases where work is done upon the goods of another, or even materials supplied or added to the goods of another. Thus if a carriage-maker should repair my carriage, both furnishing labor and supplying materials, it would be a contract for work and labor, as the whole result of his efforts would not produce a chattel which could be the subject of sale by him. If on the other hand, by the contract he lays out work or materials, or both, so as to produce a chattel which he could sell to me, the contract is within the statute.

This conclusion has been reached only after great discussion and 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, Benj. Sales, 77. The action was there brought by a dentist to recover £21 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. Black

burn, 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, 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 contract of sale within the statute. See, also, Mixer v. Howarth, 21 Pick. 205, 32 Am. Dec. 256; Lamb v. Crafts, 12 Metc. 353; Spencer v. Cone, 1 Metc. 283.

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 authorative expression of the rule is found in a recent case in this court. Parsons v, Loucks, 48 N. Y. 17, 19, 8 Am. Rep. 517.

The contrast 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 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, 9 Am. Dec. 187; Sewall v. Fitch, 8 Cow. 215; Robertson v. Vaughn, 5 Sandf. 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 appears, not even the rags, "except so far as such existence may be argued from the fact that matter is indestructible." So in Sewall 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 than that enunciated in Lee v. Griffin. It is at once so philosophical 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.

EVANS v. ROBERTS.

(Court of King's Bench, 1826. 5 Barn. & C. 829.)

Indebitatus assumpsit, for crops of potatoes bargained and sold. Plea, the general issue. At the trial before Garrow, B., at the Spring assizes for the county of Monmouth, 1826, it appeared, that on the 25th of September, a verbal agreement was made between the plaintiff and defendant, by which the defendant agreed to purchase of the plaintiff a cover of potatoes then in the ground, to be turned up by the plaintiff, at the price of £5., and the defendant paid 1s. earnest. It was objected, that this was a contract or sale of an interest in or concerning land, within the meaning of the fourth section of the statute of frauds. The learned Judge was of opinion, that as the seller was to turn up the potatoes, the contract did not give the buyer any interest in the land; and he directed a verdict to be found for the plaintiff, but reserved liberty to the defendant to move to enter a nonsuit.

BAYLEY, J. I am of opinion, that in this case there was not a contract for the sale of any lands, tenements, or hereditaments, or any

3 Compare Sale of Goods Act, § 4 (2), and Sales Act, § 4 (2).

If the goods are to be manufactured, not by the seller, but by a third person, and are not suitable for sale to others, is the contract within the statute? See Eagle Paper Box Co. v. Gatti-McQuade Co., 99 Misc. Rep. 508, 164 N. Y. Supp. 201 (1917); Williston, 34 Harv. Law Rev. 741; note, 22 Columbia Law Rev. 767.

interest in or concerning them, but a contract only for the sale and delivery of things which, at the time of the delivery, should be goods and chattels. It appears that the contract was for a cover of potatoes; the vendor was to raise the potatoes from the ground at the request of the vendee. The effect of the contract, therefore, was to give to the buyer a right to all the potatoes which a given quantity of land should produce, but not to give him any right to the possession of the land; he was merely to have the potatoes delivered to him when their growth was complete. Most of the authorities cited in the course of the argument, to show that this contract gave the vendee an interest in the land within the meaning of the fourth section of the statute of frauds, are distinguishable from the present case.

In Crosby v. Wadsworth, 6 East, 602, the buyer did acquire an interest in the land; for, by the terms of the contract, he was to mow the grass, and must, therefore, have had the possession of the land for that purpose. Besides, in that case, the contract was for the growing grass, which is the natural and permanent produce of the land, renewed from time to time without cultivation. Now, growing grass does not come within the description of goods and chattels, and cannot be seized as such under a fi. fa.; it goes to the heir and not to the executor; but growing potatoes come within the description of emblements, and are deemed chattels, by reason of their being raised by labor and manurance. They go to the executor of tenant in fee simple, although they are fixed to the freehold [see Com. Dig. tit. Biens (G,) and Gilbert's Law of Evidence, 214,] and may be taken in execution under a fi. fa., by which the sheriff is commanded to levy the debt of the goods and chattels of the defendant; and if a growing crop of potatoes be chattels, then they are not within the provisions. of the fourth section of the statute of frauds, which relates to lands, tenements, or hereditaments, or any interest in or concerning them.

In Parker v. Staniland, 11 East, 362, the owner of a close cropped with potatoes, made a contract on the 21st of November, to sell them at so much per sack, and the purchaser was to raise them from the ground immediately; and that was held not to be a contract for any interest in or concerning land. In that case, as well as in Warwick v. Bruce, 2 M. & S. 205, the potatoes had ceased to grow; and, therefore, they are distinguishable from the present; but the reasoning of Lord Ellenborough in the latter case may assist us in coming to a right conclusion in the present; he there says: "If this had been a contract conferring an exclusive right to the land for a time, for the purpose of making a profit of the growing surface, it would be a contract for the sale of an interest in or concerning lands, and would then fall unquestionably within the range of Crosby v. Wadsworth, 6 East, 602. But here is a contract for the sale of potatoes at so much per acre: the potatoes are the subject matter of sale; and whether at the time of sale they were covered with earth in the field, or in a box, still it was a sale of a mere chattel." It does not appear that the