Parker v. Schenck & Rutherford , 28 Barb. 38 ( 1858 )

Ingraham, J.

The facts proven in this case were, that the defendants wanted a pump; and on examining those in possession of the plaintiffs the defendants were not satisfied with them. They wanted one made of brass, with some alterations varying it from those of the plaintiffs. They inquired as to the cost, and were informed of a gross sum as the cost of a part of the pump, and that the brass would be charged for by the pohnd, over and above the cost if made of iron. An order was finally given, to have the pump made. The defense is, the want of a written contract, under the statute of frauds:

The present contract is not within the class of cases to which that statute relates. It was not for the mere sale of a pump, but for the manufacture of a pump in a peculiar way, suited to the purposes of the defendants, and which might not have been required for another. It comes within that class of cases referred to by Judge Bronson in Downs v. Ross. (23 Wend. 273,) as cases out of the statute. “ With a single exception they relate to contracts for the sale of a thing not then in existence, but which was to be constructed or manufactured by the vendor.”

There can be no doubt in this case, that there was to be a special mode of constructing this pump for the defendants, and that work was to be done, of a particular character. Nor was the price fixed, for it. A portion was to be charged at a fixed rate; the balance depended on the quantity of brass used. It is the same as if a man bought cloth and ordered it made into a coat; when the price to be charged for the making was a fixed sum, and the amount to be charged for the cloth depended on the quantity used. Such an order has always been considered as not within the statute.

In all the cases cited by the defendants’ counsel the contract was for specific articles, at a fixed price; and the contract did not contemplate any work to be done, in preparing the article, in compliance with directions previously given, but merely preparing for market, or sale, the article purchased.

In this case, as in the cases in 18 John. 58, and 8 Cowen, 215, the article agreed for was to be manufactured according to particular directions. Chitty lays down the rule applicable to such cases to be, that the statute does not apply to contracts for work, labor and materials; that is, a contract to make, complete and deliver in futuro, goods not in existence and consequently not capable of delivery or part acceptance, at the time of the bargain. (Chit. on Cont. 306.) To avoid this rule in England another statute was enacted, bringing that class, also, within the statute. But no such alteration of the law has been made in this state, and until so altered, I suppose the rule to remain.

[New York Special Term, July 3, 1858.

Ingraham, Justice.]

I think the justice erred, upon the trial, in dismissing the complaint for this cause.

A new trial ordered; costs to abide the event.