Although the rule finally reached in England is absolutely logical and is the only rule that has ever been suggested for which so much can be said, it has not been followed in the United States. The only decisions approving it to its full extent seem to be Missouri cases.16 The rule most commonly adopted is what is known as the Massachusetts rule, which was first laid down by Chief Justice Shaw, in Mixer v. Howarth.17 This was an action to recover the price of a buggy made to the defendant's order and the court held the plaintiff entitled to recover. Chief Justice Shaw stated the principles governing the case as follows: "When the contract is a contract of sale, either of an article then existing, or of articles which the vendor usually has for sale in the course of his business, the statute applies to the contract, as well where it is to be executed at a future time, as where it is to be executed immediately. . . . But where it is an agreement with a workman to put materials together and construct an article for the employer, whether at an agreed price or not, though in common parlance it may be called a purchase and sale of the article, to be completed in futuro, it is not a sale until an actual or constructive delivery and acceptance; and the remedy for not accepting is on the agreement." This rule has been followed both in Massachusetts 18 and elsewhere, either exactly or substantially.19 In New York ronto Ry. Co., 22 Ont. App. 462; Wolf-enden v. Wilson, 33 U. C. Q. B. 442. 16Pratt v. Miller, 109 Mo. 78, 18 8. W. 966, 32 Am. St. Rep. 656; Bur-rell v. Highleyman, 33 Mo. pp. 183; Pike Co. v. Richardson Co. 42 Mo. App. 272; Helmers v. Nagel, 112 Mo. App. 202; Schmidt v. Rosier,: 121 Mo. App. 306,98 S. W. 791; Lesan Advertis-ing Co. v. Castleman, 165 Mo. App. 575, 148 S. W. 433; Krippendorf-Ditt-man Co. v. Hunt-Riddick Merc. Co., (Mo. App. 1916), 190 S. W. 44. The facts of most of these cases do not present an extreme application of the English rule. But in Leasn Advertising Co. v. Castleman, the subject matter of the bargain was a set of drawings made by the plaintiff.
17 21 Pick. 205, 32 Am. Dec. 256.
18Goddard v. Binney, 115 Mass. 450, 15 Am. Rep. 112. But if the seller is to procure the goods from a third person who manufactures them, the contract is within the statute. Smalley v. Hamblin, 170 Mass. 380, 49 N. E. 626.
19Rantoul Co. v. Claremont Paper Co., 196 Fed. 305, 116 C. C. A. 125; Flynn v. Dougherty, 91 Cal. 669, 27 Pac. 1080, 14 L. R. A. 230; Bond v. Bourk, 54 Colo. 51, 129 Pac. 223, 43 L. R. A. (N. S.) 97, Ann. Cas. 1914 C. 599; Atwater v. Hough, 29 Conn. 508, 79 Am. Dec. 229; Cason v. Cheely, 6 Ga. 554; Yoe v. Newcomb, 33 Ind. App. 615, 71 N. B. 256; Edwards v. Grand Trunk R. Co., 48 Me. 379; Crockett prior to its enactment of the Sales Act, still another rule was in force. The distinction was drawn between goods to be manufactured, which were treated as not within the statute, and goods already in existence which were held as within the statute, even though something remained to be done before they were in deliverable condition.20 This rule also has had a wide following in the United States.21 In the Uniform Sales Act it was thought v. Scribner, 64 Me. 447; Turner v. Mason, 65 Mich. 062, 32 N. W. 846; Baus-cher v. Gies' Est., 160 Mich. 602, 125 N. W. 420; Ericsson Mfg. Co. v. Caille Bros. Co., 196 Mich. 546,162 N. W. 81; Russell p. Wisconsin Ry. Co., 39 Minn. 146, 39 N. W. 302; Brown & Hay-ward Co. p. Wunder, 64 Minn. 450, 67 N. W. 357; Greenhut Cloak Co. 0. Oreak, 130 Minn. 304, 163 N. W. 613; Schloes v. Josephs, 98 Minn. 442, 108 N. W. 474; Pitkin v. Nayes, 48 N. H. 294, 97 Am. Deo. 615, 2 Am. Rep. 218; Prescott v. Locke, 61 N. H. 94, 12 Am. Rep. 55; Pawelaki v. Hargreaves, 47 N. J. L. 334,54 Am. Rep. 162; Mechanical Boiler Co. p. Kellner, 62 N. J. L. 544, 43 Atl. 699; Roubicek v. Haddad, 67 N. J. L. 522, 51 Atl. 938; Orman v. Hager, 3 N. Mez. 331, 9 Pac 383; Courtney v. Bridal Veil Box Factory, 55 Or. 210, 106 Pac. 896; Puget Sound Depot p. Rigby, 13 Wash. 264, 43 Pac. 39; Meiacke p. Folk, 65 Wis. 427, 13 N. W. 546, 42 Am. Rep. 722; Hanson p. Roter, 64 Wis. 622, 25 N. W. 530; Gross v. Heckert, 120 Wis. 314; Wil-liams-Hayward Co. p. Brooks, 9 Wyo. 424, 64 Pac. 342. See also Sawyer v. Ware, 36 Ala. 675; Scales v. Wiley, 68 Vt. 39, 33 Atl. 771; Wisconsin Fibre Co. v. Jeffris Lumber Co., 132 Wis. 1, 111 N. W. 237. In Willebrsndt v. Sisters of Mercy, 185 Mich. 366, 162 N. W. 85, the court refused to allow parol evidence to show that goods ordered were to be specially manufactured for the buyer.
20Parsons p. Loucks, 48 N. Y. 17, 8 Am. Rep. 517; Cooke v. Millard, 66 N. Y. 352, 22 Am. Rep. 619; Hinds v.
Kellogg, 13 N. Y. S. 922; affirmed, 133 N. Y. 536, 30 N. E. 1148; Deal v. Maxwell, 51 N. Y. 662; Warren Co. p. Holbrook, 118 N. Y. 686, 23 N. E. 908, 16 Am. St. Rep. 788; Joy p. Sohloss, 15 Abb. N. C. 373; Talmadge v. Lane, 17 N. Y. Misc. Rep. 731, 41 N. Y. 8. 413; Gerli v. Metsger, 99 N. Y. St. Rep. 858; Meyer Bros. Drug Co. v. McKinney, 137 N. Y. App. Div.. 541, 121 N. Y. S. 845. See also Roubioek v. Haddad, 07 N. J. L. 522, 51 Atl. 839. In Juillard v. Trokie, 139 N. Y. App. D. 530, 124 N. Y. S. 121, it was held that where goods are to be manufactured by some one other than the seller, the contract was within the statute; but in Morse v. Csnaswacts Knitting Co., 154 N. Y. App. D. 351,139 N. Y. S. 634, the preceding case was disapproved and a contract for goods to be manufactured by any one held a contract for work and labor. In Goldowitz v. Kupfer, 80 N. Y. Misc. 487,141 N. Y. S. 531; Schneider p. Lesinaky, 162 N. Y. S. 769, which were decided after the Uniform Saks Act was applicable, the contracts were held not within the statute because the goods question were "not suitable for sale mothers."
21 Bernett p. Nye, 4 Greene (Iowa), 410 (compare Mighell v. Dougherty, 86 Iowa, 480, 53 N. W. 402, 17 L. R. A. 765, 41 An. St. Rep. 511; Lewis p. Evans, 108 Iowa, 296, 79 N. W. 81; Dierson v. Petersmeyer, 109 Iowa, 233, 80 N. W. 389; Clinton Sugar Refining Co., v. Horras, 176 Iowa, 706,15 N. W. 602); Eichelberger v. M'Cauley, 5 H. & J. 213, 9 Am. Dec. 514; Bagby v. Walker, 78 Md. 239, 27 Atl. 1033; best to follow the Massachusetts rule as representing, on the whole, the weight of American authority. Although the English rule is more exact from a scientific standpoint, as a practical rule it seems to have no advantage.22