§ 309 a. An important English case, involving the question of construction we have been considering under the seventeenth section, is Lee v. Griffin, in the Queen's Bench, in 1861.1 This was an action by a dentist to recover £21 for two sets of teeth, ordered by a deceased person, whose executor was the defendant. The main question in the case was whether or not a contract to make a set of artificial teeth was a contract for the sale of goods, wares, and merchandise, and all the judges agreed that it was. The rule upon which they based their decision was stated somewhat differently by the judges; Crompton and Hill, JJ., saying that, wherever a contract is for a chattel to be made and delivered, it is a sale of goods, and not a contract for work and labor. Blackburn, J., said: "If the contract be such that, when carried out, it will result in the sale of a chattel, the party cannot sue for work and labor; but if the result of the contract is that the party has done work and labor which ends in nothing that can become the subject of a sale, the party cannot sue for goods sold and delivered." The same learned judge, at the close of his opinion, said: "I do not think that the test to apply to these cases is, whether the value of the work exceeds that of the materials used in its execution; for, if a sculptor were employed to execute a work of art, greatly as his skill and labor, supposing it to be of the highest description, might exceed the value of the marble on which he worked, the contract would in my opinion, nevertheless, be a contract for the sale of a chattel."1 This case goes manifestly to an extreme. The declaration of Blackburn, J., that a contract for the execution of a work of art by a sculptor would, in his opinion, be a contract for the sale of a chattel, is no stronger than the actual decision of the court, that the contract before it was for a sale of a chattel. All the cases under this head of the statute have been cases of contracts which, when carried out, resulted in the sale of a chattel. The very question has always been whether, notwithstanding that fact, the particular contract should be regarded as for (not the resulting chattel, but) the labor, or the technical or artistic skill, of which the purchaser was to receive the benefit. The case of Lee v. Griffin, therefore, seems to reject rather than to illustrate this difficult distinction, which a long course of authority has introduced into the law of the construction of the statute.

1 Lee v. Griffin, 1 Best & S. 272.

1 The rule laid down in this case has been approved by Mr. Benjamin, Law of Sales, 84; Burrell v. Highleyman, 33 Mo. App. 183; Pike Electric Co. v. Richardson Drug Co., 42 Mo. App. 272. See Fairbanks v. Richardson Drug Co , 42 Mo. App. 262.

§ 310. Before passing from this subject, we must remark the distinction between a contract to sell and deliver and a contract to procure and deliver goods, wares, or merchandise. In the case of Cobbold v. Caston, the master of a vessel agreed to carry the plaintiff's corn from one port to another, and then proceed to a third and fetch a cargo of coals, which he would bring back and deliver to the plaintiff at the first port, at a certain price per chaldron. The Court of Common Pleas held that this was not a contract for the sale of the coals within the meaning of the seventeenth section of the statute, but simply a contract to procure and deliver them; in illustration of which distinction Gifford, C. J., remarked that, if no coals could be found at the port specified, it was clear that the plaintiff could not have maintained an action against the defendant for goods bargained and sold, or for a breach of the contract in not delivering them; that the contract was founded on the purchase of coals by the defendant at a certain port, but there was none whatever that he would sell them to the plaintiff.1

§ 311. The last point to be considered, in determining whether a contract for the sale of goods, wares, or merchandise falls within the provision of the seventeenth section of the statute, is the price. The statute declares that such contracts must be proved by writing, when the subject-matter of them is of the price of ten pounds sterling and upwards; and this limitation as to the amount has been generally adopted in the United States. Of course the price is not to be presumed to reach this sum; it has been decided in New York, and is according to manifest reason, that the defendant who seeks the protection of the statute must affirmatively show that it does reach it.1 But it does not prevent the application of the statute, that the price of the goods has been enhanced by the vendor's being bound to deliver them, there being no separate charge for their delivery.2 In cases where, at the time of making the bargain, it is uncertain what the amount of the price to be paid will be, there seems to arise some embarrassment. In Watts v. Friend (which has been already examined under another head), the defendant agreed to supply the plaintiff with a quantity of turnip-seed, and the plaintiff agreed to sow it on his own land, and sell the crop of seed produced therefrom to the defendant at £1 1s. the Winchester bushel. The seed so produced at the price agreed upon exceeded in value the sum of £10; and it was held by the Court of Queen's Bench (though without any particular attention being paid to the point of uncertainty of value) that the contract for the sale of the seed was covered by the seventeenth section.3

1 Cobbold v. Caston, 8 Moore, 460. And see Bird v. Muhlinbrink, 1 Rich. (S. C.) Law 199; Abbott v. Gilchrist, 38 Me. 260; Crockett v. Scribner, 64 Me. 447; Atwater v. Hough, 29 Conn. 508; Russell v. Wisconsin R. R. Co., 39 Minn. 145; Frank v. Murphy, 7 Montana 4. As to land, see §§ 263, 283 a, ante.

§ 312. From this decision it appears that, whereas that clause of the fourth section which prohibits bringing an action upon any verbal agreement not to be performed within the space of a year from the making does not apply if the agreement may by possibility be so performed, the seventeenth section must be differently construed and will cover a contract for articles for which a sum exceeding the statutory limit becomes payable eventually, though it might have fallen within that limit consistently with the terms of the contract. On the other hand, in the case of Cox v. Bailey, where the defence to an action upon an undertaking of indemnity was that the amount of the indemnity might, and in fact did, exceed twenty pounds, and that the undertaking was therefore affected by a certain statute requiring an agreement stamp where the matter of the agreement was of the value of twenty pounds or upwards, the Court of Exchequer held that statute not to apply, because the matter of the agreement might be of no value at all.1 In the former case, it is true that the turnip-seed would surely be of some value; but this seems to be a mere distinction without a difference. Looking at the policy of the statute in this particular, which is to remove the strong temptation to perjury in the proof of commercial transactions of a certain magnitude, we should incline to follow the authority of Watts v. Friend; for if a bargain may, by the understanding of the parties, attain that magnitude, it seems but reasonable that they should defer to the provisions of the law and put their bargain in writing.