Crookshank v. Burrell

Spencer, Ch. J. . . - delivered the opinion of the Court. It no where appears that the value of the waggon or the price of it, was ten pounds or upwards. The [59] claimed to recover 25 dollars; but this does not denote the price of the waggon, and it is mere matter of form. But, admitting that the price agreed on was 25 dollars, still it would not be a case within the statute. In Bennet v. Hull, (10 Johns. Rep. 364.) we decided, that the statute applied to executory, as well as other contracts, and we recognised the cases of Rondeau v. Wyatt, (2 H. Bl. 63.) and Cooper v. Elston, (7 Term Rep. 14.) as containing a just and sound construction of the statute. In giving the opinions in those cases, the judges referred to the case of Towers v. Osborn, (Str. 506.) with approbation. In that .case, the defendant bespoke a chariot, and after it was made for him, refused to take it; and Pratt, Ch. J. ruled, that it was not a case within the statute. In Clayton v. Andrews, (4 Burr. 2101.) it was decided, that an agreement to deliver wheat, understood to be unthreshed, was not within the statute. The distinction taken by Lord Loughborough in Rondeau v. Wyatt, and by the judges, who gave opinions seriatim, in Cooper v. Elston, was between a contract for a thing existing in solido, and an agreement for a thing not yet made, to be delivered at a future day. The contract in the latter case, they considered not to be a contract for the sale and purchase of goods; but, a contract for work and labour merely. However refined this distinction may be, it is well settled, and it is now too late to question it. It appears that the defendant was to come after the waggon, and that it was completed at the time agreed upon. It is necessarily to be inferred, that when he came for the waggon, he was to pay for it, in the mode agreed upon, and, of course, he was to drive his lambs to the plaintiff. We are of opinion that the judgment must be affirmed. Judgment affirmed»