Hight v. Ripley , 19 Me. 137 ( 1841 )

The opinion of the Court was delivered by

Shepley J.

It may be considered as now settled, that the statute of frauds embraces executory as well as executed contracts for the sale of goods. But it does not prevent persons from contracting verbally for the manufacture and delivery of articles. The only difficulty now remaining is, to decide whether the contract be one for the sale, or for the manufacture and delivery of the article. It may provide for the application of labor to materials already existing partially or wholly in the form designed, and that the article improved by the labor shall be transferred from one party to the other. Tn such cases there may be difficulty in ascertaining the intentions ; and the distinction may be nice, whether it be a contract for sale or for manufacture. The decision in the case of Towers v. Osborne, 2 Stra. 506, is esteemed to have been correct, while the reasons for it are rejected as erroneous. The chariot bespoken does not appear to have existed at the time, but to have been manufactured to order. Tn Garbutt v. Watson, 5 B. &. A. 613; the contract was “for the sale of 100 sacks of flour at 50s. per sack, to be got ready by the plaintiff to ship to the defendant’s order, free on board, at Hull, within three weeks.” There was an attempt to exclude it from the statute because the plaintiffs were millers and had not the flour then ground and prepared for delivery. But the contract did not provide, that they should manufacture the flour, they might have purchased it from others, and have fulfilled all its terms. It was decided to be a contract for sale of the flour and within the statute. If the contract be one of sale, it cannot be material, whether the article be then in the possession of the seller, or whether he afterward procure or make it. A contract for the manufacture of an article, differs from a contract of sale in this; 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. Hence it has been said, that if the article exist at the time in the condition in which it is to be delivered, it should be regarded as a contract for sale. In Crookshank v. Bussell, 18 Johns. 58, the contract was, that the defendant should make the wood work of a wagon for the plaintiff by a certain time; and it was decided not to be a contract for sale. In the case of Mixer v. Howarth, 21 Pick. 205, the contract was, that the plaintiff should finish for the defendant a buggy, then partly made; and it was decided not to be a contract for sale. The contract in this case provides, that the defendants should “ furnish as soon as practicable 1000 or 1200lbs. of malleable hoe shanks agreeable to patterns left with them.” They were to be “ delivered at their furnace.”

There is a provision, that the defendants may “ immediately receive orders for a larger amount, say 2000 lbs. more than heretofore stated,” and that “ the whole amount is (in such .case) to be charged at” a diminished price. Taking into consideration all the provisions of the contract, there can be little doubt, that it was the intention of the parties, that the defendants should manufacture the shanks at their furnace agreeably to certain patterns, which had been left with them. There is no evidence in the case tending to prove, that the articles were then existing in the form of the pattern. It may be fairly inferred, that they were not, but were to be made “ as soon as practicable.” The testimony presented does not then prove a contract for the sale of goods, but rather one for the manufacture of certain articles of a. prescribed pattern by order of the plaintiff.

Nonsuit set aside and new trial granted,.