Mattison v. Wescott

The opinion of the court was delivered by Redfield, J. This being a contract for manufactured articles, not in existence at the time the contract was made, the law applicable to the case will differ in some respects from the common case of the sale of articles in esse. 1. Such contracts, whatever may be the amount, do not come within the statute against frauds and perjuries. Clayton v. Andrews, 4 Burr. 2101. Towers v. Osborne, 1 Strange, 506. 7 T. R. 14. 2. In contracts of this kind, as in contracts for labor, the vendor must perform the entire contract, on his part, within [262] the time stipulated, or he can recover nothing. This has been done in the present case, unless the stone coming from a different quarry than the one from which it was expected they would come, varies the case. It seems the stone were of the same kind, and of a superior quality. We do not perceive how' it could be important from what particular quarry the stone came. This cannot be considered of the essence of the contract, unless there was an express stipulation to that effect, or an understanding, which the parties, at the time, considered binding. We do not conceive that could have been the case. This quarry was doubtless referred to, in order to determine the quality of the marble. 3. The case, then, when the articles were ready for delivery, is like the common case of goods bargained and sold. It is true there had been no delivery; and no action for goods sold and delivered could have been maintained. Thompson v. Maceroni, 10 E. C. L. R. 3. But when the article is finished, according to the terms of the contract, so that nothing more remained to be done, the title passes to the vendee ; the vendor is entitled to an action for the price, and the goods, thereafter, remain at the risk of the vendee. Hinde v. Whitehouse, 7 East. 558. It is true the vendor has a lien upon the goods for the price, unless, by the terms of the contract, delivery was to precede payment. If this were not the law, it would operate very hardly in a case like the present, where the articles are almost wholly valueless for the purposes of re-sale. We see no objection to the vendor, in the present case, maintaining an action on book. It is the universal practice of mechanics to charge those articles, which their customers order, when made. And we do not consider that the right to recover, in this form of action, is affected by the actual delivery of the article. This is not like the case of Barlow v. Reed, 1 Vt. R. 97. The property in the articles charged there, had not passed. That action was, in effect, to recover damages for the breach of a special contract. Judgment affirmed,