1 Smith v. Surman, 9 Bam. & C. 561. See also Northern v. State, 1 Ind. 112; Ellison v. Brigham, 38 Vt. 64; Hanson v. Roter, 64 Wisc. 622.

2 The same is true, as appears by several of the cases cited, where the articles contracted for are not at the time in possession of the vendor, but are expected to be received by him in season. See Bronson v. Wiman, 10 Barb. (N. Y.) 406; Seymour v. Davis, 2 Sandf. (N. Y.) 239; Ide v. Stanton, 15 Vt. 685.

3 Garbutt v. Watson, 5 Barn. & Ald. 613.

1 Mixer v. Howarth, 21 Pick. 207.

§ 306. This distinction has not been recognized in the courts of New York, which have preferred to abide by the rule asserted in the earlier English cases, but, as we have seen, more lately repudiated; namely, that if the goods, etc., do not at the time of making the bargain exist in solido, the statute cannot apply. Thus, in Sewall v. Fitch, the plaintiffs by their agent contracted with the defendants for a quantity of nails. The defendants' clerk (with whom the bargain was made) told him the quantity was not then on hand, but that they could be soon made, or "knocked off," and be obtained from the manufactory at Norwich at the opening of the navigation. The Supreme Court (per Savage, C. J.) said: "The contract in this case was for the delivery of nails thereafter to be manufactured. It was, therefore, a contract for work and labor and materials found, and so out of the statute." 3 Subsequently, in a case where the facts were very similar, except that the agreement proved was in terms to make and deliver the articles, the same court decided that the statute did not apply, proceeding, however, simply on the authority of Sewall v. Fitch, and very forcibly condemning the doctrine on which that case rested.1

1 Lamb v. Crafts, 12 Met. 356; and see Atwater v. Hough, 29 Conn. 508; O'Neil v. New York Mining Co., 3 Nev. 141; Edwards v. Grand Trunk Railway, 54 Me. 105; Finney v. Apgar, 31 N. J. L. 266. In Clark v. Nichols, 107 Mass. 547, a contract for the delivery of a certain number of feet of plank, to be sawed of various dimensions under the purchaser's directions, was held within the statute. Central Co. v. Moore, 75 Wisc. 170; Orman v. Hager, 3 New Mex. 331; Pratt v. Miller, 109 Mo. 79; Flynn v. Dougherty, 91 Cal. 669; Fox v. Utter, 6 Wash. 299; Mighell v. Dougherty, 86 Iowa 480.

2 Goddard v. Binney, 115 Mass. 450. See Meincke v. Falk, 55 Wisc. 427.

3 Sewall v. Fitch, 8 Cow. 219.

§ 307. But, reverting to the distinction between the cases where the articles to be sold are to be made up in the ordinary course of the vendor's business, and those where they are to be made pursuant to the purchaser's special order, we may on further examination discover a broader rule, and one more manifestly derived from the terms of the statute itself, on which the cases advancing that distinction may be naturally and firmly supported. In Gardner v. Joy, in the Supreme Court of Massachusetts, the plaintiff asked the defendant his price for candles; the defendant named it; the plaintiff said he would take a hundred boxes, and the defendant said the candles were not manufactured, but he would manufacture and deliver them in the course of the summer. Shaw, C. J., said the contract was "essentially a contract of sale. The inquiry was for the price of candles; the quantity, price, and terms of sale were fixed, and the mode in which they should be put up. The only reference to the fact that they were not then made and ready for delivery was in regard to the time at which they would be ready for delivery; and the fact that they were to be manufactured was stated as an indication of the time of delivery, which was otherwise left uncertain."2 Here, although the agreement was in terms, as in Robertson v. Vaughan, to manufacture and deliver the articles, yet the statute was held to apply; because, upon all the circumstances of the bargain, it was clearly no part of it that the vendor should manufacture them.1 On the other hand, there are repeated New England cases where a contract expressly to manufacture articles out of materials to be found by the manufacturer has been held not affected by the statute.2

1 Robertson v. Vaughan, 5 Sand. 1. In a late case in New York, where it was held that the statute applied to a contract for cider to be obtained by the seller from farmers and refined before delivery, the decision in Garbutt v. Watson was cited as law. Seymour v. Davis, 2 Sand. 239. But see Bronson v. Wiman, 10 Barb. 406. See also Smith v. New York Central R. R., 4 Keyes 180; Parsons v. Loucks, 48 N. Y. 17; Killmore v. Howlett, 48 N. Y. 569.

2 Gardner v. Joy, 9 Met. 179.

§ 308. It would seem then to be broadly true that, if the contract is essentially a contract for the article, manufactured or to be manufactured, the statute applies to it; but if it is for the manufacture, for the work, labor, and skill to be bestowed in producing the article, the statute does not apply. The former is within the terms of the seventeenth section; the latter is not. Where the article contracted for is not such as the vendor has for sale in the ordinary course of his business, in other words, not with him an ordinary article of traffic, that fact will go to show that, in contracting with him for the production of it, the purchaser contemplates getting by his bargain the work, labor, and skill of the other.3 A circumstance from which the intention of the parties that the purchaser should get by the bargain the work, labor, and skill of the seller may conclusively appear, will be that the article, when complete, is to be of a peculiar kind, suitable only to peculiar uses, or perhaps only to those of the purchaser himself. This point is dwelt upon with much force in an opinion of the Superior Court of Georgia, delivered by Nisbet, J., where he refers to Towers v. Osborne, and considers it as belonging to a class of cases where articles are "to be made by the work and labor, and with the material, of the vendor, and which, when made, may reasonably be presumed to be unsuited to the general market, such as contracts for the