Contracts for work and labor have never been within the terms of Statutes of Frauds. It is, therefore, necessary to mark the line which divides such contracts from contracts to sell. The early English decisions 12 suggested different rules which have been influential upon the decisions in America but which have been superseded in England by the decision of Lee v. Griffin,13 in which it was decided that a contract for the manufacture of a set of false teeth to the order of the defendant's testatrix was a contract for the sale of goods. The rule in that case was thus stated by Blackburn, J.: "If the contract be such that, when carried out, it would result in the sale of a chattel, the parly 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 parly 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. ... 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, might exceed the value of the marble on which he worked, the contract would, in my opinion, nevertheless be a contract for the sale of a chattel." This rule has been carried to the extent of holding that a contract to paint a portrait is a contract for the sale of goods.14 Canada follows the English decisions. 15
10 Russell v. Betts, 107 Ark. 629, 166 S. W. 457.
11 Wallace p. Long, 105 Ind. 622, 5 N. E. 666,56 Am. Rep. 222.
12 Rondeau v. Wyatt, 2 H. Bl. 63;
Garbutt v. Watson, 5 B. & Ald. 613; Clay v. Yates, 1 H. & N. 73.
131 B. 4 8. 272.
14 Isaacs v. Hardy, 1 Cab. 4 E. 287.
15Canada Bank Note Co. v. To-