4 Hinde v. Whitehouse, per Ld. Ellenborough, 7 East, 558, 568; Powell v. Edmunds, 12 East, 6, 7; Blagden v. Bradbear, 12 Ves. 466, 472.

5 Birch v. Depeyster, 4 Camp. 385; Phillips & Amos on Evid. p. 738, 739, ed. 1838; Johnston v. Usborne, 11 Ad. & El. 549.

6 Wright v. Dannah, 2 Camp. 203; Sewall v. Fitch, 8 Cow. 215.

§ 1004. Whether goods to be manufactured come within the purview of the seventeenth section of the statute has been a question of frequent consideration and serious conflict. The subject is free from difficulty to this extent, where the goods are furnished by the employer; in such a case there can clearly be no contract of sale; there is to be no transfer of title to the employer; and the case, therefore, is not within the meaning of the statute.6 The difficulty has arisen in those cases where the party employed undertakes to manufacture the goods from materials not furnished by the employer. The early doctrine in England took such cases out of the statute, on the ground that the seventeenth section did not apply to executory contracts.1 But this point was met by Lord Tenterden's act, which extended the law to the case of goods which "may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or" where "some act may be requisite for the making or completing thereof, or rendering the same fit for delivery." 2 Before this statute was passed, however, Lord Ellenborough had decided a case not to be within the statute, because the subject-matter of the contract was not at the time of the undertaking in rerum naturÔ, and therefore was not capable of delivery and of part acceptance.3 The New York courts, again, make a distinction between the case where the article to be manufactured does not exist at all, and that where, though existing, it requires the performance of labor to fit it for the employer. They hold the latter case to be embraced within the statute, and the former not.4 In other cases the criterion is held to be this, whether the predominant idea be manufacture, that is to say, work and labor; and, if so, then the contract is not covered by the statute.5 The subject has. recently undergone much consideration in England; and it has finally been decided in that country that the true criterion for determining whether a contract of this character be within the meaning of the statute is this: Will the effect of the contract be to transfer to the employer an article to which he had no title before ? If it will, it is a contract of sale; if not, the statute does not apply.1

1 Emmerson v. Heelis, 2 Taunt. 38, overruling Stansfield v. Johnson, 1 Esp. 101; Bird v. Boulter, 4 B. & Ad. 443; Frost v. Hill, 3 Wend. 386; White v. Proctor, 4 Taunt. 209; Rucker v. Cammeyer, 1 Esp. 105; Chapman v. Partridge, 5 Esp. 256; Boorman v. Jenkins, 12 Wend. 566.

2 Grant v. Fletcher, 5 B. & C. 436; Hinde v. Whitehouse, 7 East, 569; dimming v. Roebuck, Holt, N. P. 173; Heyman v. Neale, 2 Camp. 337; Thornton v. Charles, 9 M. & W. 802; Gregson v. Ruck, 4 Q. B. 736.

3 Thornton v. Kempster, 5 Taunt. 786. 4 Maclean v. Dunn, 4 Bing. 722.

5 Hawes v. Forster, 1 Mood. & Rob. 368; Goom v. Aflalo, 6 B. & C. 117. See Sievewright v. Archibald, 17 Q. B. 103; 6 Eng. Law & Eq. 286. 6 Atkinson v. Bell, 8 B. & C. 277.

1 Towers v. Osborne, 1 Strange, 506; Clayton v. Andrews, 4 Burr. 2101.

2 9 Geo. IV. ch. 14, § 7. This statute seems to be merely in affirmance of what had been intended by the Statute of Frauds, and the distinction taken in favor of executory contracts of sale was doubtless never sound. See Bennett v. Hull, 10 Johns. 361; Crookshank v. Burrell, 18 Johns. 58; Rondeau v. Wyatt, 2 H. Black. 63; Cooper v. Elston, 7 T. R. 14.

3 Groves v. Buck, 3 M. & S. 178.

4 Smith v. New York Central R. Co., 4 Keyes, 180; Downs v. Ross, 23 Wend. 270; Sewall v. Fitch, 8 Cow. 219; Donovan v. Willson, 26 Barb. 138; Robertson v. Vaughn, 5 Sandf. 1; Bennett v. Hull, 10 Johns. 361; Crookshank v. Burrell, 18 Johns. 58; Parsons v. Loucks, 4 Rob. 216.

5 Clay p. Yates, 1 H. & N. 73; Spencer v. Cone, 1 Met. 283; Mixer v. Howarth, 21 Pick. 205; Allen v. Jarvis, 20 Conn. 38; Mattison v. Wes-cott, 13 Vt. 258, 261. See Browne on Statute of Frauds, § 308.

§ 1005. Though this would seem to be a very obvious and natural construction of the seventeenth section, it is not necessarily the true construction everywhere. The intention of the legislature of a State in 'enacting a similar statute may have been different from the intention of Parliament, as finally determined in this case. The courts of New York adopted the construction of Lord Loughborough in Rondeau v. Wyatt, the principle of which they doubtless assumed to have been in the mind of the legislature when the New York statute was passed. So the court of Massachusetts adopted a construction which was thought to express the intention of the legislature when the statute of that State was passed. And the fact that the English courts may have arrived at a different construction of their statute may be no evidence that the American courts have misinterpreted the intention of the legislatures here.2

1 Lee v. Griffin, 1 Best & S. 272; Benjamin on Sale, 84.

2 See Mr. Benjamin's criticism on the American decisions in his work on Sale, pp. 84 and 87. A review of the cases will not be without interest and profit. In Towers v. Osborne, 1 Strange, 506 (1722), an action was brought for the price of a chariot which the defendant had ordered, but which he refused to take when finished. To the objection that the contract was within the meaning of the statute, it was held at nisi prius that the action was maintainable, and that the statute related only to contracts for the actual sale of goods, where the buyer was immediately answerable (without time given by special agreement), and the seller was to deliver the goods immediately. The next case (Clayton v. Andrews, 4 Burr. 2101, a.d. 1767) was decided upon the same principle, that the statute referred to executed and not to executory contracts of sale. In that case the defendant had agreed to deliver wheat at a future day, and to receive payment on delivery, the wheat being unthreshed at the time. The case was held to be without the statute; and this without notice of the fact that the wheat was to be threshed. The ground of these cases, as has been stated, was not satisfactory either in England or America. Rondeau v. Wyatt, 2 H. Black. 63, followed in 1792. This was an action on the case for the non-performance of a verbal agreement for the sale of certain sacks of flour to be delivered at a future day; and the agreement was held to be within the statute, notwithstanding it was executory, thus repudiatthe northern nations confirmed their contracts by shaking hands; and this practice still exists in England and America, and is recognized by the Roman and the common law.1 Earnest is only a ratification of the contract, however, and gives the buyer a conditional right to the goods, upon payment of the whole price. But if he do not, within a reasonable time, pay for and take the goods, the vendor may resell them to another person.2 So, if a time and place be appointed for payment, and the buyer do not attend at such time and place, the seller may also resell, although earnest be given.3