§ 1006. Secondly. We now come to the second exception mentioned in the statute; namely, the giving something in ing the ground of both the prior cases. But Lord Loughborough, who delivered the judgment, thought those cases both sustainable upon a ground not mentioned in either of them; namely, that the contract in both cases was for work and labor to be done, - in the one case in making the wagon, in the other in threshing the wheat. Cooper v. Elston, 7 T. R. 14, decided in 1796, was to the same effect. The next case was Groves v. Buck, 3 M. & S. 178, decided in the King's Bench in 1814. In this case a contract had been made for the purchase of a quantity of oak pins, to be made out of slabs, and delivered to the buyer. This was held to be within the seventeenth section of the statute; the ground of distinction between the case and Rondeau v. Wyatt being that there the thing contracted for existed in the form in which it was to be delivered, while in the present case the thing to be delivered did not. at the time of the agreement, exist in rerum naturÔ. In 1822 the case of Garbutt v. Watson, 5 B. & Ald. 613, was decided, also in the King's Bench; and this case overruled Andrews v. Clayton. It was an action of assumpsit for the non-performance of a verbal agreement by millers to sell and deliver a quantity of flour, which at the time was not prepared so as to be capable of delivery. This was held to be a contract for the sale of goods. Abbott, C. J., said: "In Towers v. Osborne the chariot which was ordered to be made would never, but for that order, have had any existence. But here the plaintiffs were proceeding to grind the flour for the purposes of general sale, and sold this quantity to the defendant as part of their general stock. The distinction is indeed somewhat nice, but the case of Towers v. Osborne is an extreme case, and ought not to be carried further." All of these cases were decided before the passage of Lord Tenterden's act, supra. Atkinson v. Bell, 8 B. & C. 277 (1828),.was contemporaneous with the act. This was assumpsit for goods sold, work and labor and materials found. The facts were these: The defendants were linen and thread manufacturers, and assignees of Sleddon, a bankrupt. It appeared that one Kay obtained a patent for a new mode of spinning flax, and the defendants, being desirous of trying the effect of it, ordered him to procure, to be made for them as soon as possible, a preparing frame and two spinning frames in the manner he most approved. Later, Kay ordered two spinning frames and a roving frame to be made by Sleddon for the defendants, and informed them that he had so done. These machines were formed on Kay's first plan, and completed at the end of March, and after they had been so completed they lay on Sleddon's premises a month, while two other machines of these defendants intended to be used in the same mills, were altered by Sleddon, under Kay's superintendence; and when those had been completed to his mind, he ordered the machines in question to be altered in the same manner. They were altered accordingly, packed in boxes by Kay's directions, and remained on Sleddon's premises. In earnest, to bind the bargain. And, in this connection, the only material rule to be stated is, that there should be an
June afterwards Sleddon wrote to the defendants, and informed them that the two frames had been ready for the last three weeks, and begged to know by what conveyance they were to be sent. In August following Sleddon was declared a bankrupt. The assignees afterwards required the defendants to take the frames, but they refused to do so. It was held that the action was not maintainable. After showing that the property in question had not passed to the defendants, Mr. Justice Bayley said: "Then as to the counts for work and labor, if you employ a man to build a house on your land, or to make a chattel with your materials, the party who does the work has no power to appropriate the produce of his labor and your materials to any other person. Having bestowed his labor at your request on your materials, he may maintain an action against you for work and labor. But if you employ another to make up his own materials in making a chattel, then he may appropriate the produce of that labor and [those] materials to any other person. No right to maintain any action vests in him during the progress of the work; but when the chattel has assumed the character bargained for, and the employer accepted it, the party employed may maintain an action for goods sold and delivered, or, if the employer refuse to accept, a special action on the case for such refusal. But he cannot maintain an action for work and labor, because his labor was bestowed on his own materials, and for himself, and not for the person who employed him." Mr. Justice Littledale said: " There could not be any sale in this case, unless there was an assent by the defendants to take the articles. Here there was no assent. The property must be changed to make the action maintainable." It is worthy of remark that the dictum of Bayley, J., at the close of his opinion, supra, was overruled in Grafton v. Armitage, 2 C. B. 336, in which an action by an inventor for services performed on his own materials was sustained. See also Clay v. Yates, 1 H. & N. 73; Lee v. Griffin, 1 B. & S. 273, 276. Smith v. Surman, 9 B. & C. 561, was decided afterwards, in 1829. It was an action to recover the value of certain timber which the plaintiff verbally agreed to sell the defendant at so much per foot, the timber being then contained in trees growing on the plaintiff's land. Mr. Justice Bayley said: "It seems to me that the true construction of the bargain is, that it is a contract for the future sale of the timber when it should be in a state fit for delivery. The vendor, so long as he was filling it and preparing it for delivery, was doing work for himself, and not for the defendant." And Garbutt v. Watson was cited as in point. Littledale, J., said: "Now looking to the object of the statute, as recited in the preamble, I collect it was the intention of the legislature to comprehend within the fourth and seventeenth sections the subject-matter of every parol contract, the uncertainty in the terms of which was likely to produce perjury or subornation of perjury. A contract for mere work and labor is not specifiactual payment of a portion of the price, in order to satisfy the terms of the statute. The mere act of drawing a shilling cally mentioned in those clauses; such a contract, therefore, may not be within the statute. But where the contracting parties contemplate a sale of goods, although the subject-matter at the time of making the contract does not exist in goods, but is to be converted into that state by the seller's bestowing work and labor on his own raw materials, that is a case within the statute. It is sufficient if, at the time of the completion of the contract, the subject-matter be goods, wares, and merchandise." Parke, J., said that Groves v. Buck was overruled by Garbutt v. Watson. "The true question in such cases," said he, "is as to whether the contract be substantially a contract for the sale of goods, or for work and labor and materials found." The subject came before the Court of Exchequer in 1856, in Clay v. Yates, 1 H. & N. 73. This was an action for goods sold and delivered, and work and labor and materials. The plaintiff was a printer, and brought his action upon a verbal agreement to print a book, which agreement he had performed. The printer found the paper. It was held that the action was maintainable. Pollock, C. B., said: "It may happen that part of the materials is found by the person for whom the work is done, and part by the person who does the work. For instance, the paper for printing may be found by the one party, while the ink is found by the printer. In such cases it seems to me that the true criterion is, whether work is the essence of the contract, or whether it is the materials supplied. My impression is that in the case of a work of art, whether in gold, silver, marble, or plaster, where the application of skill and labor is of the highest description, and the material is of no importance as compared with the labor, the price may be recovered as work, labor, and materials." Martin, B.: "The defendant, having a manuscript, takes it to a printer to print for him. Then what does he intend shall be done? He intends that the printer shall use his type, shall set it up in a frame and impress it on paper, that the paper shall be submitted to the author, that the author, having corrected it, shall send it back to the printer, who shall again exercise labor, and make it into a complete thing in the shape of a book. That being so, I think that the plaintiff was employed to do work and labor, and supply materials, and for that he is entitled to be paid. It seems to me that the true criterion is this: suppose there was no contract as to payment, and the printer brought an action to recover what he was by law entitled to receive, would that be the value of the book as a book? I apprehend not; for the book might not be worth half the value of the paper on which it was printed, but he would be entitled to recover for his work, labor, and materials supplied." Bensley v. Bignold, 5 B. & Ald. 335, was cited. The latest English case was decided in the Queen's Bench in 1861, and in that case the rule stated in the text to have been finally reached was declared. Lee v. Griffin, 1 B. & S. 272. In this case the contract in question was for the across the hand of the seller, without allowing him to retain it, which is called, in the north of England, "striking a barmaking of a set of artificial teeth; and it was held to he a contract for the sale of goods. Crompton, J., adverting to the distinction between the contract of sale and that for work and labor, said: "The distinction between these two causes of action is sometimes very fine; but where the contract is for a chattel to be made and delivered, it clearly is a contract for the sale of goods. There are some cases in which the supply of the materials is ancillary to the contract, as in the case of a printer supplying the paper on which a book is printed. In such a case an action might perhaps be brought for work and labor done and materials provided, as it could hardly be said that the subject-matter of the contract was the sale of a chattel. Perhaps it is more in the nature of a contract merely to exercise skill and labor. Clay v. Yates, 1 H. & N. 73, turned on its own peculiar circumstances. I entertain some doubt as to the correctness of that decision; but I certainly do not agree to the proposition that the value of the skill and labor, as compared to that of the material supplied, is a criterion by which to decide whether the contract be for work and labor or for the sale of a chattel." Blackburn, J., said: "If the contract be such that when carried out, it would result in the sale of a chattel, the party 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 party 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. In Atkinson v. Bell, 8 B. & C. 277, the contract, if carried out, would have resulted in the sale of a chattel. In Grafton v. Armitage, 2 C. B. 340, Tindal, C. J., lays down this very principle. He draws a distinction between the cases of Atkinson v. Bell and that before him. The reason he gives is that in the former case 'the substance of the contract was goods to be sold and delivered by the one party to the other;' in the latter, ' there never was any intention to make any thing that could properly become the subject of an action for goods sold and delivered.' ... 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."