Among the American cases, Crookshank v. Burrell, 18 Johns. 58, decided in the Supreme Court of New York in 1820, is leading. In that case the plaintiff sued upon a contract by which he had agreed to make a wagon for the defendant for a price to be paid in lambs. This was held gain," is not sufficient.1 The practice of ratifying a contract of sale by some formal act, which should be typical of the to be a contract for work and labor, and therefore not within the statute. The distinction taken in Rondeau v. Wyatt and in Cooper v. Elston, between a contract for a thing existing in solido and an agreement for a thing not yet made, was adopted. Sewall v. Fitch, 8 Cowen, 215 (1828), was assumpsit for not delivering a quantity of cut nails. The plaintiff applied to the defendant for a certain quantity of the nails, and was told that they were not on hand, but could be soon knocked off and obtained, and the order was given accordingly. The contract was held to be within the meaning of the statute, following the rule in Crookshank v. Burrell. "The contract," it was said, "was not for the sale of goods then in solido, but for work and labor in part in the making of the articles to be delivered. In the subsequent case of Downs v. Ross, 23 Wend. 270 (1840), the contract was for the sale of wheat to be threshed; and this was held to be within the meaning of the statute. "If," said Mr. Justice Bronson, "the thing sold exist at the time in solido, the mere fact that something remains to be done to put it in a marketable condition will not take the contract out of the operation of the statute." In accordance with these cases, it has been held that a contract to grind out flour to be sold was not within the statute. Bronson v. Wiman, 10 Barb. 406. So of a contract for a marble monument, nearly but not quite finished, to be completed and delivered to the defendant. Mead v. Case, 33 Barb. 202. So, too, of a contract to make and deliver a thousand molasses shooks and heads. Robertson v. Vaughan, 5 Sandf. 1, following the settled construction in New York, but not without reluctance. See also Parsons v. Loucks, 4 Rob. (N. Y.) 216; Parker v. Schenck, 28 Barb. 38; Donovan v. Willson, 26 Barb. 138; Smith v. New York Central R. Co., 4 Keyes, 180; Passaic Manuf. Co. v. Hoffman, 3 Daly, 495; Webster v. Zielly, 52 Barb. 482.
The construction of the New York courts is also adopted in Maryland. Rentch v. Long, 27 Md. 188, in which a parol contract to deliver corn ungathered and unshucked was sustained.
The leading case in Massachusetts is Mixer v. Howarth, 21 Pick. 205, a.d. 1838. This was an assumpsit for work and labor, and materials found. The defendant went to the plaintiff's shop and selected a lining for a carriage. The plaintiff had on hand the body of a carriage nearly finished, but not lined; and upon a conversation between them it was understood that the plaintiff was to finish a carriage for the defendant in a fortnight. The unfinished carriage was completed accordingly, and the defendant had notice thereof, and was requested to take it away. The action was sustained. Shaw, C. J., speaking for the court, said: "It is conclusive assent of both parties, is recorded in the most ancient annals of history. In Ruth,1 we read that amongst very clear, we think, that by this contract no property passed to the defendant. The carriage contemplated to be sold by the plaintiff to the defendant did not then exist. It was to be constructed from materials partly wrought indeed, but not put together. It was therefore essentially an agreement by the defendant with the plaintiff to build a carriage for him, and on his part to take it when finished, and pay for it at an agreed or at the reasonable price. . . . 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. Cooper v. Elston, 7 T. R. 14; Sewall v. Fitch, 8 Cowen, 215. 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 case was simply affirmed in Spencer v. Cone, 1 Met. 283 (1840), where an agreement to make machines for a certain price, and to find the materials for the same, was held not to be within the statute. The next case was Gardner v. Joy, 9 Met. 177, in 1845. The plaintiff sued for the price of candles. The defendant bargained for one hundred boxes at a fixed price. The precise time of delivery was not stated; the plaintiff said they were not manufactured yet, but he would make and deliver them in the course of the summer. It was held that this was a contract for the sale of the goods, and not for their manufacture. Later still, in Lamb v. Crafts, 12 Met. 353 (1847), Shaw, C. J., said: "The distinction, we believe, is now well understood. When a person stipulates for the future sale of articles which he is habitually making, and which at the time are not made or finished, it is essentially a contract of sale, and not a contract for labor; otherwise when the article is made pursuant to the agreement."
1 Blenkinsop v. Clayton, 7 Taunt. 597.
The same distinction seems to be taken in Connecticut. See Allen v. Jarvis, 20 Conn. 38; Atwater v. Hough, 29 Conn. 508. Also in Maine. Abbott v. Gilchrist, 3S Me. 260; Edwards v. Grand Trunk Railway Co., 48 Me. 379; s. c. 54 Me. 105. And in New Jersey. Finney v. Apgar, 2 Vroom, 266. And in Nevada. O'Neil v. New York Mining Co., 3 Nev. 141. And in Georgia. Cason v. Cheely, 6 Ga. 554.
In Vermont it is considered to be settled, first, that executory contracts are within the statute; secondly, that contracts for the manufacture and future delivery of goods, wares, and merchandise are not within the the Jews "it was the manner to confirm all things, for a man to pluck off his shoe, and give it to his neighbor; and this was a testimony in Israel." In the same manner was the contract of sale between Boaz and Elimelech ratified.1 So, also, statute; thirdly, that the fact that work and lahor is to be performed upon the subject-matter of the contract before it is to be delivered in accordance with the terms of the contract, does not necessarily take it out of the statute. Ellison v. Brigham, 38 Vt. 64. "The fact that labor is to be bestowed upon the property," said Pierpoint, J., "to remove it from the place where it is at the time of the contract to the place of delivery is not sufficient, although the value of the property at the place of delivery may consist principally in the expense of removing it to such place. The contract must require the performance of such work and labor upon the property as shall materially and essentially change the character of the property itself, so that the property as it is to be when delivered must be substantially different from what it is at the time the contract is entered into, in order to take the contract out of the statute. . . . The contract in this case was that the defendant would cut into logs all the butternut trees then on a certain part of his farm that were suitable for logs, and deliver them, together with a few logs then cut, to the plaintiffs at Burnett's saw-mill, within a certain time, for which the plaintiffs were to pay the defendant a specified price per cord, when measured at the mill. Most of the trees were standing at the time the contract was made. To perform this contract, it was necessary for the defendant to perform work and labor, but no other labor was required than such as was absolutely necessary to a delivery of the property. . . . No manufacture of the property into any thing that would essentially change "its character was contemplated or required."