1 Towers v. Osborne, 1 Stra. 506. 2 Clayton v. Andrews, 4 Burr. 2101.

§ 302. In the New York cases, this distinction between contracts for an article to be entirely manufactured and an article already existing but to be fitted for delivery by the application of work and labor, the latter being within the statute and the former not, appears to be adopted as decisive in questions of this class.2 But, as a fixed criterion, it is liable to some practical objections. For it may often be a matter of great nicety whether the labor to be applied to the article really amounts to constructing it or only to preparing it; as, for instance, where articles are kept on hand by manufacturers, in parts or pieces ready to be put together.1 And it is difficult, also, to see the reason for the distinction; for in either case the article is incapable at the time of being delivered according to the contract; it is as much so when incomplete as when not existing.

1 Groves v. Buck, 3 Maule & S. 178.

2 Downs v. Ross, 23 Wend. 270; Sewall v. Fitch, 8 Cow. 215; Crook-shank v. Burrell, 18 Johns. 58; Robertson v. Vaughan, 5 Sandf. 1; Bron-son v. Wiman, 10 Barb. 406; Donovan v. Willson, 26 Barb. 138; Bennett v Hull, 10 Johns. 364; Parsons v. Loucks, 48 X. Y. 17, Gray, C, diss.; Deal v. Maxwell, 51 X. Y. 652; Bates v. Coster, 1 Hun 400. See also Rentch v. Long, 27 Md. 188; Pawelski v. Hargreaves, 47 N. J. Law 334. The delivery to be made of goods purchased has never been considered as work and labor done upon them. Waterman v. Meigs, 4 Cush. (Mass.) 497; Jackson v. Covert, 5 Wend. (X. Y.) 139; Downs v. Ross, 23 Wend. (X. Y.) 270; Houghtaling v. Ball, 19 Mo. 84; Ellison v. Brigham, 38 Vt. 64; Warren Chemical Co. v. Holbrook, 118 X. Y. 586; Bagley v. Walker, 27 Atl. Rep. (Md.) 1033.

§ 303. The great body of authority, both English and American, has of late proceeded upon principles entirely independent of this distinction. In a case occurring only a year after Groves v. Buck, where the contract was to sell and deliver oil not yet expressed from seed in the vendor's possession, it was held by the Common Pleas to be within the exception of the stamp act exempting from duty contracts relating to goods, wares, and merchandise; and Gibbs, C. J., thus illustrates the fallacy of the distinction referred to: "A baker agrees to produce me a loaf to-morrow; he has not the bread, but he has the flour and is to make it into bread and deliver it. How often does a butcher contract to deliver meat when he has not the meat, and the beast is not yet killed. It is out of all common sense to say this is not a contract for goods, wares, and merchandises."2 Again, in the case of Watts v. Friend, the Court of Queen's Bench held that the seventeenth section of the statute applied to a contract to sell a crop of turnip-seed not yet planted. Lord Tenterden, C. J., said that according to good common sense this must be considered as substantially a contract for goods and chattels, for the thing agreed to be delivered would, at the time of the delivery, be a personal chattel.8 And to the same effect, it will be remembered, is the case of Smith v. Surman, which, like that last quoted, was examined in another chapter in connection with the subject of contracts for land.1 These authorities, with many others to be presently referred to, conclusively show that, so far as the English courts are concerned, the mere circumstance that the article is not existing at the time of the bargain will not prevent the application of the statute.2

1 See the case of Mixer v. Howarth, 21 Pick. (Mass.) 205, where nothing was done but putting on to the carriage contracted for a certain lining selected by the buyer. See Bates v. Coster, 1 Hun (N. Y.) 400, criticising Mead v. Case, 33 Barb (N. Y.) 202.

2 Wilks v. Atkinson. 6 Taunt. 12.

3 Watts v. Friend, 10 Barn. & C. 446. See Bowman v. Conn, 8 Ind. 58; Pitkin v. Noyes, 48 N. H. 294.

§ 304. There is, however, a distinction taken in many decisions between the purchase of articles such as the vendor regularly manufactures from time to time and has for sale in the ordinary course of his business, and those which he manufactures to order, though from materials in his possession. Thus, in Garbutt v. Watson, where the plaintiffs, who were millers, verbally agreed with the defendant, who was a corn merchant, for the sale of one hundred sacks of flour to be got ready to ship in three weeks, the Court of Queen's Bench refused to set aside a nonsuit obtained below, holding that the bargain was within the statute; and when the decision in Towers v. Osborne was urged, Abbott, C. J., said that in that case "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 a 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 farther."3

§ 305. In Massachusetts a similar view has repeatedly been expressed. In Mixer v. Howarth, the facts were that the defendant went to the plaintiff's shop, where the plaintiff had the unfinished body of a carriage, and gave directions to him to finish the carriage, putting in a certain lining which the defendant selected. The carriage was to be finished in about a fortnight. The Supreme Court held that it was essentially an agreement on the plaintiff's part to build a carriage and on the defendant's part to take it when finished and pay for it at the agreed or a reasonable rate, but that it was not a contract of sale within the meaning of the Statute of Frauds. Chief Justice Shaw, who delivered the opinion of the court, proceeds to say: "Where 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. 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."1 So in Lamb v. Crafts, a later case in the same court, where a person whose business was that of collecting rough tallow and preparing it for market, made an oral agreement with another to furnish him at a certain time and place with a certain quantity of prepared tallow, it was held to be a contract for the sale of the tallow and within the Statute of Frauds. And the same eminent judge (Chief Justice Shaw) said: " The distinction, we believe, is now well understood. Where 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 So in Goddard v. Binney, in the same court, the defendant gave the plaintiff, a carriage-builder, a verbal order for a buggy to be painted and lined in a certain way, furnished with a seat of a certain material, and marked with the defendant's initials; so far as the report shows, no other directions were given, and the buggy was to be in all other respects such as the plaintiff was in the habit of making; the contract was held to be not within the Statute of Frauds.2