Why the price should be recoverable is not always made clear. The earliest decision was in Bement v. Smith,51 an action for the price of a sulky built to order by the plaintiff for the defendant and refused when tendered by the plaintiff, who thereupon said he would leave it with a third person and accordingly did so. In allowing the plaintiff to recover the full price the court relied on early cases under the Statute of Frauds.52 In these early cases it was held that such a contract as the one in suit was a contract not of sale but for work and labor. This being true, the court held as a consequence that though the plaintiff did not recover the price directly, as for goods sold, the amount of recovery should be, nevertheless, fixed by the price, since that was the agreed value of the labor. The only way in which this reasoning can be answered in a wholly satisfactory way is by confessing that the authorities, under the Statute of Frauds, which have held that a contract for goods to be made to order is not a contract of sale but a contract for work and labor are erroneous. This is now admitted in England, and the early decisions are overruled.53 But in many of the United States it is still law that where goods are to be made to order, which are of a special kind differing from those ordinarily made by the seller, the contract is not one of sale, but for work and labor;54 and the Uniform Sales Act has adopted this rule.55 In other States it is held that in any case where the contract is for the sale of a commodity not in existence at the time, and which the seller is to manufacture or put in a condition to be delivered, the contract is one for work and labor.56 It may be doubted whether the States which have adopted one or the other of these views under the Statute of Frauds would generally admit, as a consequence of their decisions, that the contracts in question should be treated as contracts for work and labor in such a sense that the price must be paid for the work rather than for the title to the property. It would be indeed unfortunate if the strained construction which has been adopted in order to evade the Statute of Frauds should be applied in other classes of cases. It should rather be said, and probably would be, that though a contract may not be a contract of sale within the meaning of the Statute of Frauds, if it is contemplated that special work and labor by the seller shall go into it, it is, nevertheless, a contract of sale for other purposes. There can, in fact, be no doubt that the price is promised for the completed article, not for the work and materials which have gone into its manufacture. The reason, therefore, on which Bement v. Smith57 was rested cannot be supported. It is not generally adopted to-day,58 and the New York court has long ceased to rest the buyer's right to the price on this reason. A later New York decision59 laid down the rule broadly that any seller might at his option store or retain the property for the vendee and sue him for the entire purchase price. The doctrine is stated as applicable not only to cases where the title has passed, but to cases where the buyer's default consists in not letting it pass.60 This decision and the rule laid down therein have been very influential in other jurisdictions, and cases which refuse to confine the seller to the difference between the contract price and the market price generally go back to this New York decision for their foundation. Of course, if the seller is entitled to the price, the buyer must be entitled to the goods. At what moment the title passes to him is not much discussed in the decisions, but the statement of the rule that the seller may store or retain the property for the buyer Civ. App.), 126 S. W. 48; Leventhal v. Hollamon, (Tex. Civ. App.), 166 S. W. 6; Pratt v. Freeman Mfg. Co., 115 Wis. 648, 92 N. W. 968; Haueter v. Marty, 156 Wis. 208, 146 N. W. 775.
50 See infra, (1367. The States which have passed this act are enumerated, supra, Sec. 506.
5115 Wend. 493 (1836).
52 Towers v. Osborne, 1 Strange, 506; Crookshank v. Burreil, 18 Johns. 58, 9 Am. Dec. 187.
53 Lee 0. Griffin, 1 B. A S. 272. See supra, Sec.508.
54 See supra, Sec.509.
55 See supra, Sec. 506.
56 See supra, Sec. 1609.
57 15 Wend. 403.
58 It was, however, followed in Bal-lentine v. Robinson, 46 Pa. St. 177.
59 Dubtan v. McAndiew, 44 N. Y. 72.
60 Dustan v. McAndrew, 44 N. Y.
72, 78, per Earl, C, and see cases cited in the preceding section. The same statement is expressly applied to executory contracts of sale in Ackerman v. Rubens, 167 N. Y. 406, 60 N. E. 750, 63 L. R. A. 867, 82 Am. St. Rep. 728 implies that when the seller deposits the goods with a third person for the buyer, or gives notice to the buyer by suing for the price or otherwise, that he himself is holding the goods for the buyer, either the title thereupon passes, or, what amounts to the same thing, the rights of the parties will subsequently be adjusted as if it had passed at that time.61 The remedy thus allowed is neither more nor less than specific performance of the contract. In a court of equity a contract for a purchase of land is enforced by a decree ordering the defendant to pay the price upon the transfer of title. In the case of a sale of goods the New York court and other courts following its rule allow the seller by force of his own expressed volition to make the buyer owner in spite of the buyer's dissent, and thereupon to recover the price.