1 See also Eichelberger v. M'Cauley, 5 Harr. & J. (Md.) 213.

2 Spencer v. Cone, 1 Met. (Mass.) 283, affirming Mixer v. Howarth, 21 Pick. 205; Mattison v. Wescott, 13 Vt. 258; Allen v. Jarvis, 20 Conn. 38.

3 In Cummings v. Dennett, 26 Me. 401, Whitman, C. J., said: "It is very clear that, if application is made to a mechanic or manufacturer [though] for articles in his line of business, and he undertakes to prepare and furnish them in a given time, such a contract, though not in writing, is not affected by the statute." manufacture of goods suited alone to a particular market, or for the painting of one's own portrait." Of which contracts he says: "The work and labor and material constitute the prime consideration. They are for work and labor, and are, by authority and upon principle, without the influence of the statute. Ex cequo et bono, a man who agrees to bestow his labor in the manufacture of goods for a price, and which price he must lose unless the goods are received by him who ordered them, ought to be paid, and a statute which would protect the purchaser from liability in such a case would be alike impolitic and unjust." Of the case before them, which was an action on a contract for a crop of cotton, to be delivered as soon as it could be gathered and prepared for market, the court say: "The manufacturer does not necessarily lose the price of his labor. If the purchaser does not take the goods, others will. The work and labor bestowed are in the line of his business, and his work and labor would have been bestowed in the production of such goods had the contract not been made. The goods and their price are the considerations of the contract, and not the work and labor and their price."1 And so the Supreme Court of Maine have held that a contract by which the defendants bound themselves to furnish as soon as possible a quantity of malleable hoe-shanks, according to patterns left with them, and to furnish a larger amount if required at a diminished price, was to be considered as a contract for the manufacture and delivery and not for the mere sale of the articles, and so not within the statute. The opinion of the court contains the following important suggestion as to the distinction between the two kinds of contracts: "The person ordering the article to be made is under no obligation to receive as good or even a better one of the like kind purchased from another and not made for him. It is the peculiar skill and labor of the other party, combined with the materials, for which he contracted and to which he is entitled."1 A decision of the Court of Exchequer, also, is instructive upon this point. An author, by verbal agreement, employed a printer to print a certain work, and placed the manuscript in his hands for that purpose. The printer having completed the work (with the exception of the dedication, which, discovering it to be libellous, he refused to print) brought his action for what he had done, in the form of work, labor, and materials supplied. A verdict was obtained for the plaintiff, and in support of a rule to set it aside and enter a nonsuit, the Statute of Frauds was relied upon, the book being above the value of ten pounds. It was held that the form of the action was correct, and that the statute did not apply. Lord Chief Baron Pollock remarked that the true rule was, to consider whether the essence of the contract consisted in the work and labor, or in the materials that were to be supplied; and his impression was, that in cases of works of art, which were applications of labor of the highest description, the material was of no sort of importance as compared with the labor.3

1 Cason v. Cheely, 6 Ga. 554, approving Bird v. Muhlinbrink, 1 Rich. (S. C.) Law 199. See also Buxton v. Bedall, 3 East, 303.

§ 308 a. Perhaps it might not be always correct to say that when the purchaser could refuse the goods as not being of the vendor's manufacture, then the statute would not apply; but the cases which have been referred to seem, upon the whole, to establish that the true question is, whether the essential consideration of the purchase is the work and labor of the seller to be applied upon his materials, or the product itself as an article of trade; and that in determining this question the peculiarity of the article ordered, and the seller's not commonly dealing in such articles, are material and may be conclusive circumstances. In other words, while a contract for the sale of an article (in whatever state it is at the time) is within the seventeenth section, a contract for the manufacture and delivery of an article is not; either expression, however, as used by the parties, being liable to such an interpretation as the circumstances of the transaction show to be that intended by them.

1 Hight v. Ripley, 19 Me. 139; Mead v. Case, 33 Barb. (N. Y.) 202; Parker v. Schenck, 28 Barb. (N. Y.) 38; Abbott v. Gilchrist, 38 Me. 260; Winship v. Buzzard, 9 Rich. (S. C.) Law 103; Higgins v. Murray, 4 Hun (N. Y.) 565; Flynn p. Dougherty, 91 Cal. 669.

2 Clay v. Yates, 1 Hurl. & N. 73. The mere fact that the particular article contracted for is to be adapted, in the manufacture, to the personal use of the purchaser, as in the case of custom-made clothing, etc., does not, it seems, prevent the statute from applying. Lee v. Griffin, 1 Best & S. 272; per Lord Abinger, in Scott v. Eastern Counties Railway Co., 12 Mees. & W. 33; Rasch v. Bissell, 52 Mich. 455.

§ 309. The statute 9 Geo. IV. c. 14, 7, commonly called Lord Tenterden's Act, provides that the seventeenth section of the statute of Charles "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, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery." This statute, following as it did closely upon the decision of Garbutt v. Watson, in 1822, seems to be no more than declaratory of the prevailing opinion in England as to what was the construction of the seventeenth section of the Statute of Frauds, touching the classes of cases which it enumerated. In the case just referred to, of the suit by a printer for work, labor, and materials found in printing a book, Lord Chief Baron Pollock expressed his opinion that Lord Tenterden's Act applied only when the bargain was for goods afterward to be made, and not for goods for which the material was found.