This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If the contract is essentially one for work and labor, and the title to personalty is not to pass as a result thereof, it is not within the statute. Thus a contract for publishing an advertisement,1 or a contract to pay a commission to an agent for selling personal property, the amount to depend upon the price obtained,2 are not within the statute. This principle applies where A agrees with B to buy goods from X and to divide them with B on being compensated therefor; but the courts are not harmonious in the results reached. If the contract is held to be essentially one of agency, in which A acts as B's agent, it is not within the statute,3 but if it is in effect a contract by A to buy and resell to B, it is within the statute.4
8 Phelps v. Hendrick, 105 Mass. 106.
9 Williams v. Burgess, 10 Ad. & E. 499; Hilliard v. Weeks, 173 Mass. 304; 53 N. E. 818; Johnston v. Trask, 116 N. Y. 136; 15 Am. St. Rep. 394; 5 L. R. A. 630; 22 N. E. 377; Fay v. Wheeler, 44 Vt. 292.
10 Dickinson v. Dickinson, 29 Conn. 600.
11 Boardman v. Cutter, 128 Mass. 388.
12 Alexander v. Comber, 1 H. Bl. 20; Clayton v. Andrews, 4 Burr. 2101. This principle was not necessary in deciding these cases, since they may be as well explained by treating them as contracts for work and labor. See Sec. 681.
13 Rondeau v. Wyatt, 2 H. Bl. 63.
14 Weeks v. Crie, 94 Me. 458; 80 Am. St. Rep. 410; 48 Atl. 107; Gil-man v. Hill, 36 N. H. 311; Carman v. Smick, 15 N. J. L. 252; Ide v. Stanton. 15 Vt. 685; 40 Am. Dec. 698.
1Goodland v. Le Clair, 78 Wis. 176; 47 N. W. 268.
2 Hamilton v. Frothingham, 59 Mich. 253; 26 N. W. 486.