Atwater v. Hough

Sanford, J. In this case the defendants requested the court to charge the jury that, if they found the facts as claimed by the defendants, the contract was within the statute of frauds and void and therefore that their verdict should be for the defendants. The court did not charge the jury as requested, and the question reserved for our advice is, whether upon the facts as claimed by the defendants and detailed in the motion, the agreement between' these parties was, or was not, a contract for the sale of goods. These facts are, that the defendants themselves were not [512] manufacturers of sewing machines, but they had fitted up a shop for the manufacture of them, and had contracted with Bell & Brooks to occupy the shop and make machines there, at a stipulated price for each machine, the defendants furnishing materials, shop-room and tools. They had a contract with, and were .having machines made for, other parties, and had thirty-six finished machines on hand, which the plaintiff agreed to take as part of the one hundred contracted for. Bell & Brooks had the materials for the rest of the hundred, and had them in the process of manufacture, and nothing was to be done for the plaintiffs by the defendants but to receive the balance of the machines from Bell & Brooks when finished by them, and to box and .deliver the whole to the defendants. The obligation of the defendants was not an absolute, but only a conditional one; they were only to furnish the machines to the plaintiff if Bell & Brooks should get them completed. This was, in my judgment, an agreement for the purchase and sale of complete machines. It had indeed nothing to do with the manufacture of them, except as their completion by Bell & Brooks affected the defendant’s obligation under the condition above mentioned. The manufacture of the machines had already been provided for by an independent contract made before, and without any reference to, this contract with the plaintiff. The machines were originally intended for, and were being made to supply an order from, another purchaser, and this contract with the plaintiff was to affect only their ultimate destination after they should be made and should have come to the hands of the defendants as their ma-ii chines. £ The work remaining to be done upon the unfinished machines was not to be done upon the plaintiff’s materials, or at his request, or for his use1.. The thirty-six machines were, and the sixty-four upon their completion would be, the property of the defendants, and the plaintiff would have no property in any of them until their delivery to him by the defendants.J The defendants were to bestow none of their labor^ skill, or care, upon the machines, or to do anything whatever in the manufacture of them, and it was of no importance by [513] whom they were manufactured, or in what market they were-procured. If they were in all particulars like the model they would satisfy the contract. The understanding and intention of the parties, as that is evinced by the stipulations which they have entered into and the language they have used, is always the rule by which con. tracts are to be interpreted and enforced. And it seems clear that this was substantially, and according to the intention and understanding of the parties, a contract for the purchase and sale of finished goods, and not for the making of them; for the transfer and acquisition of property in finished machines, and not for materials, and work and labor upon materials, in making them. In the case of Gardner v. Joy, 9 Met., 177, Shaw, Ch. J., said, “ If it is a contract to sell and deliver goods, whether they are then completed or not, it is within the statute; but if it is a contract to make and deliver an article or quantity of goods, it is not within the statute.” In this case the defendants, as they claimed, made no contract to make the machines, they only agreed to sell and deliver them, or, in the language of the motion, to furnish them if Bell & Brooks should get them completed. See also Smith v. Surman, 9 Barn. & Cress., 561. Watts v. Friend, 10 id., 446. Lamb v. Crafts, 12 Met., 353. This was indeed an executory contract, the machines were to be delivered at a future time, but notwithstanding the decisions of the courts in the earlier cases, it seems now to settled, in accordance with the rules of just interpretation, as well as the dictates of reason and common sense, that a contract for the sale of goods is not without the purview of the statute merely because it is executory. Rondeau v. Wyatt, 2 H. Bla., 67. Garbutt v. Watson, 5 B. & Ald., 612. Downs v. Ross, 23 Wend., 270. 2 Parsons on Contracts, 334, and note. Cases involving the question now under consideration have often arisen, and the distinctions made by judges in deciding them have in some instances been extremely nice, and it is not to be denied that it is difficult if not impossible to reconcile all those determinations. And perhaps too, no [514] general rule can be framed by which it may always be determined whether the agreement in question is a contract for the sale of goods, and so within the statute, or a contract for work and labor to be performed in a stipulated manner upon materials of which the goods are to be made, and so without the purview of the act. But if we are wrong in regard to the sixty-four machines then in the process of manufacture, it seems impossible to entertain a doubt in respect 1¡o the thirty-six. They were entirely finished and ready for the market, and were examined by the plaintiff and agreed upon as a part of the hundred contracted for. As to them, it was an agreement to buy and sell them as they were. Nothing remained to be done to them to fit them for delivery, and nothing to be done with them except as accessory to the delivery upon the final completion of the contract. The type-metal guides which Bell & Brooks were to apply to the machines if the plaintiff should furnish them in time, were not regarded as, and were not in fact, any part of the machines contracted for. The machines were complete and ready for use without the guides. The defendants were neither to apply the guides, nor to be responsible for their application, and it made no difference in regard to the price of the machines whether the guides should be applied or not. Indeed, the arrangement regarding them, whatever it was, was not made with the defendants but with Bell & Brooks. The application of the guides seems to have been regarded as a trifling as well as voluntary service, which Bell & Brooks were willing to render for the plaintiff without compensation. In regard to the boxing and delivery, that had nothing to do with the manufacture or completion of the goods sold. They were completed, and the broad rule relied upon by the plaintiff, that if any thing remains to be done to the article sold to fit it for delivery, the contract is not within the statute, whatever may be said of its accuracy, has no application in this case. And besides, the contract was entire, to sell the machines and to box and deliver them. And it being as to the sale of the machines within the statute and void, it was void [515] also as to the boxing and delivery. For an entire contract can not be within the statute as to part of it and without the statute as to the residue. It has often been decided that a contract to deliver the goods sold at a distance from the place of sale, does not take the case out of the statute. Astey v. Emery, 4 M. & S., 262. Bennett v. Hull, 10 Johns., 364. Jackson v. Covert, 5 Wend., 139. Lastly, This contract was entire, no part of it was separable from the rest; and if it were possible to consider it in relation to the sixty-four machines an agreement for work and labor in their manufacture, in regard to the thirty-six it was beyond all controversy an agreement to buy and sell them as they were. As to them therefore the contract was within the operation of the statute and was void. And then, the contract being entire, and being within the statute and void as to part of it, under the rule already alluded to and to which we suppose there is no exception, it was wholly void. Irvine v. Stone, 6 Cush., 508. Cowen, J., in Downs v. Ross, 23 Wend., 270. Thayer v. Rock, 13 id., 53. Chater v. Beckett, 7 T. R., 197. Crawford v. Morrell, 8 Johns., 253. . I think the court ought to have charged the jury as requested by the defendants, and therefore that a new trial ought to be advised. In this opinion the other judges concurred. New trial advised.