Parsons v. . Loucks

Hunt, C. The paper to be delivered was not in existence at the time of the making of the contract in October, 1862. It was yet to be brought into existence by the labor and the science of the defendants. Of the 20,000, pounds to- be delivered, not an ounce had then been manufactured. It was all of it to be created by the defendants, and at their mill. In such a case it is well settled, that the statute of frauds, does not apply to the contract. The distinction is between the sale of goods in existence, at the time of making the contract, and an agreement to manufacture goods. The former is within the prohibition of the statute, and void unless it is in writing, or there has been a delivery of a portion of the goods sold or a payment of the purchase-price. The latter is not. The statute reads, “ every contract for the sale of any goods, chattels or things in action, for the price of fifty dollars or more, shall be void unless,” etc. (2 R. S., 136, § 3.) The statute alludes to a sale of goods, assuming that the articles are already in existence. This distinction was settled in this State in 1820, by the case of Crookshank v. Burrell (18 *20 John. R., 58), and has been followed and recognized in many others. (Sewell v. Fitch, 8 Cowen, 215; Robertson v. Vaughan, 5 Sand. S. C. R., 1; Bronson v. Wiman, 10 Barb., 406; Donovan v. Willson, 26 Barb., 138; Parker v. Schenck, 28 id., 38; Mead v. Case, 33 id., 202; Smith v. N. Y. Central R. R., 4 Keyes, 194.) The present is not one of the border cases, in which an embarrassing or doubtful question is presented, as where wheat is sold, but the labor of thrashing remains to be done (Downs v. Ross, 23 Wend., 270), or a sale of flour which has yet to be ground from the wheat (Garbutt v. Watson, 5 B. & Ald., 613), or the sale of wood or timber which requires to be cut and corded (Smith v. N. P. Central R. R., supra), nor where the defendants might procure other parties to manufacture the paper. (3 Pars, on Contracts, 52.) It was a simple naked agreement to manufacture at their own mills, and deliver at a specified price, 20,000 pounds of paper of specified sizes, no part of which was in existence at the time of making the contract. Indeed, there is no evidence that the rags and other materials from which it was to be manufactured were owned by the defendants, or were in existence, except so far as it may be argued that matter is indestructible, and that in some form they must necessarily have then existed. As to cases of this character, the course of decisions in this State has been uniform. If we desired to do otherwise, we have no choice; we must follow them. The judgment must be affirmed with costs.