(d) 2 Bing. N C. (29 E. C. L. R.) 735.
(e) 9 C. B. N. S. (99 E. C. L. R) 843, 30 L. J. (C. P.) 150, 154.
Of the bargain signed by the party to be charged. As soon as that occurs, the contract, though not previously actionable, becomes actionable." In the recent case also of Maddison v. Alderson (f), Lord Blackburn says: "I think it is now finally settled that the true construction of the Statute of Frauds, both the 4th and the 17th sections, is not to render the contracts within them void, still less illegal, but is to render the kind of evidence required indispensable when it is sought to enforce the contract."
*A doubt was entertained at one period whether the 17th section included the case of a contract for something not in existence in a chattel state at the time of making the bargain, but which was to become a chattel before the time agreed upon for its delivery (g). Where, for instance, growing timber was bargained for, to be delivered cut into planks, or a ship or a carriage not yet built.1 However, any doubt that
(f) 8 App. Cas. 467, 488; 52 L. J. (Q. B.) 737, 749. (g) Lee v. Griffin, 30 L. J. (Q. B.) 252.
1 It was formerly held that executory contracts were not within the statute, but that it was confined to cases where the buyer was immediately answerable : Towers v. Osborne, Str. 506; Clayton v. Andrews, 4 Burr. 2101; but this distinction was doubted by Lord Thurlow, in 3 Bro. C. C. 355, and was subsequently overruled : Rondeau v. Wyatt, 2 H. Bl. 63; Cooper v. Elston, 7 T. R. 14.
The statute of 9 Geo. IV. has not been generally re-enacted in this country, and hence the English cases upon the construction of this part of the Statute of Frauds before its alteration have still a practical application here. The first case was Towers v. Osborne, already cited, where the defendant bespoke a chariot, and refused to take it when made, and the Court held that a writing was not necessary, for the statute "related only to contracts for the actual sale of goods, when the buyer is immediately answerable, without time given him by special agreement." Then came Clayton v. Andrews, supra, where the plaintiff agreed to deliver a load and a half of wheat within a month, at so much a load, to be paid on delivery, the wheat being then unthrashed, and the Court, on the authority of Towers v. Osborne, held the case not to be within the statute, rather, however, on the ground of the contract being executory, than because the wheat did not then exist in the form in which it was to be delivered. Then these two cases were, as has been said, overruled as to the disformerly existed on this subject is now put an end to; for, by statute 9 Geo. 4, c. 14, s. 7, it is enacted that the tinction between executed and executory contracts. Then in Garbutt v. Watson, 5 B. & Ald. (7 E. C. L. R.) 613, the contract was for the delivery of flour, which was then unground wheat, and the Court said that " 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," and it was said that the question was whether the contract was for the sale of goods, or for work and labour and material found; and the case of Clayton v. Andrews, which was scarcely distinguishable from the present one on this point, was said to have been also incorrectly decided upon the point of the condition of the wheat. Subsequent cases have held that contracts to sell oil not then expressed from seeds: Wilks v. Atkinson, 6 Taunt. (1 E. C. L. R.) 11; to supply a house with pipes to be laid in a specified manner: West Middlesex Co. v. Suwerkrop, 4 C. & P. 87; to make a copper-plate press to be ready in three months: Pinner v. Arnold, 2 Cr. M. & R. 613, overruling Buxton v. Beddall, 3 East, 304, and the like', are within the statute, and must, therefore, be written; but a contract to deliver a quantity of oak pins, which were not then made, but were to be cut out of slabs, being merely an agreement for labour to be done upon materials found, was held not to be a " contract for the sale of goods," for the thing to be delivered did not exist in solido, and would be incapable of delivery: Groves v. Buck, 3 M. & S. 178. In this country, the distinction between the contract being executed and executory has also been disregarded: Bennett v. Hull, 10 Johns. 364; Crookshank v. Burrell, 18 lb. 58; Jackson v. Covert, 5 Wend. 141; Cason v. Cheely, 6 Ga. 554. As respects the condition of the subject of the contract, it has been truly said that " the difficulty arises not so much from any uncertainty in the rule, as from the infinitely various shades of different contracts. If it is a contract to sell and deliver goods, whether they are then completed or not, it is within the statute. But if it is a contract to make and deliver an article or a quantity of goods, it is not within the statute:" per Shaw, C. J., in Gardner v. Joy, 9 Metc. 179; and the same judge subsequently thus laid down the rule: " 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 labour; otherwise, when the article is made pursuant to an agreement:" Lamb v. Crofts, 12 lb. 356; Cason v. Cheely, 6 Ga. 554. Thus, agreements to make the woodwork of a wagon, to be paid for in lambs at one dollar a head: Crookshank v. Burrell, 18 Johns. 58; to completely line with cloth, selected by defendant, a buggy of which the body existed in an unfinished state: Mixer v. Howarth, 21 Pick. 204; and to make ten stave machines, and find the materials : Spencer v. Cone, 1 Metc. 283; to make twelve surgical adjusters, and find the materials: Allen v. Jarvis, 20 Conn. 38; to furnish, as Boon as practicable, one thousand or twelve hundred malleable hoe shanks, agreeably to patterns furnished: Hight v. Ripley, 19 Me. 137; were respect17th section of the Statute of Frauds "shall extend to all contracts for the sale of goods of the value of £10 sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of such contract, be actually made, pre ively held not to be contracts within the statute : see Cummings v. Dennett, 26 lb. 397; but a contract for the purchase of one hundred boxes of candles, the time of delivering not being mentioned, but the defendant stating that they were not yet manufactured, but he would manufacture and deliver them in the course of the summer, was in a late case held to be a "sale of goods" within the statute: Gardner v. Joy, 9 Metc. 179; so of cider not yet manufactured: Seymour v. Davis, 2 Sandf. 241; wheat not yet thrashed: Downs v. Ross, 23 Wend. 274; and cotton to be packed in bales: Cason v. Cheely, 6 Ga. 554. In Maryland, in 1821, the case of Eichelberger v. M'Cauley, 5 Harr. & J. 214, was for the delivery of unthrashed wheat, and on the authority of Clayton v. Andrews, the contract was held not to be within the statute, but the late authorities seem generally to agree in condemning the decision of that case, and say, moreover, of Towers v. Osborne, that it was rightly decided, but upon a wrong reason.