The statute does not contemplate, as being included in its terms, contracts for the sale of things to be manufactured by the seller, but look upon such a contract as one for work and labor only.18

This rule, as stated, is subject to many qualifications and is hedged in by many rules of exception, so that it may be said there is no general rule on the subject, but the question always is this, is the contract under the circumstances of the case, to be considered a sale or one for work and labor to be performed upon the material of which the goods are to be made. There are three doctrines on this point, which may be invoked to determine the meaning to be given the words in the statute, called respectively, the English rule, the Massachusetts rule, and the New York rule. The English rule is stated in the now famous case of Lee vs. Griffin,19 by Judge Blackburn, as follows: "If the contract be such that it will result in the sale of a chattel, then it will constitute a sale, but if the work and labor be bestowed in such a manner, as that the result would not be anything which could properly be said to be the subject of a sale, the action is for work and labor."

The rule would not include the case where work is done upon goods of another, or even materials supplied or added to the goods of another. The English rule make a special point upon the fact as to whether the thing bargained for, can be regarded as a thing capable of sale by the professed seller at the time of delivery, disregarding the fact whether they are in existence, at the time the contract is made or not.

18 Brown vs. Allen, 35 Iowa, 306.

19 I. B. & S., 272.

The Massachusetts rule puts special force on the question whether the goods can at the time named for delivery, be regarded as goods, wares, and merchandise, in the sense of being goods subject to be made marketable, by the manufacturer, and likewise disregards the fact as to whether or not the goods are in existence at the time the contract is made. This test mainly, is then, whether the manufacturer produces the article in the general course of his business.20 This rule is the one generally adopted throughout the United States.

The New York rule makes it necessary that there be a completed contract of sale at the time the contract is made. Therefore if the goods are not in existence as a whole at the time of the contract, but are goods which the manufacturer is to produce or prepare in the future, then the contract is not deemed to be a contract of sale,21

Many courts lay special stress on, whether the goods are to be produced on special order requiring personal work and particular skill, or are to be produced in the usual course of the manufacturer's business, if the latter they deem it a sale, but the former they do not deem to be within the statute, but rather a contract for work and labor on the thing produced.