Ellison v. Brigham

[66] The opinion of the court was delivered by Pierpoint, J. The only question presented by the bill of exceptions is, whether the contract, upon which the plaintiff seeks to recover is within the statute of frauds. The counsel in this case have brought to our notice most-of the English and American cases applicable to the question. Without attempting to follow the various changes in the law of the subject, as evidenced by the decisions from time to time of the English courts, and the courts in this country, it is sufficient now to say, that certain general principles applicable to the case seem to be well established by authority. 1st. Executory contracts are within the statute. 2d. Contracts for the manufacture and future delivery of goods, wares and merchandise, are not within the statute. 3d. That the fact that work and labor is to be performed upon the subject matter of the contract, before it is to be delivered, in accordance with the terms of the contract, does not necessarily take it out of the statute. -Whether it is to have such an effect or not, depends upon the nature and character of the labor to be performed, and its effect upon the subject matter. The fact that labor is to be bestowed upon the property to remove it from the place where it is at the time of the contract, to the place of delivery, is not sufficient, although the value of the property at the place of delivery may consist principally in the expense of removing it to such place. ^The contract must require the performance of such work and labor upon the property, as shall materially and essentially change the character of the property itself, so that the property as it is to be when delivered, must be substantially different from what it is at the time the contract is entered into, in order to take the contract out of the statute.^ In short, it must be of .such a character as to bring the contrSnt within the rule that excepts from the operation of the statute contracts for the manufacture of property, or convert it substantially into a contract for work and labor. The inclination of the courts in England and in this country, at the present time, is to limit rather than extend the class of cases that are excepted from the operation of the statute, and some eminent jurists have manifested considerable restiveness, under the [67] restraint of the rule that excepts contracts for the manufacture and delivery of property, insisting that they come clearly within the object and spirit of the statute, but they have thus far yielded to the power of authority. The opinion of -Doer, J., in Robertson v. Vaughn, 5 Sandf. 1, is a strong example of this character. The contract in this case was that the defendant would cut into logs all the butternut trees then on a certain part of his farm that were suitable for logs, and deliver them, together with a few logs then cut, to the plaintiffs at Burnett’s sawmill, within a certain time, for which the plaintiffs were to pay the defendant a specified price per cord, when measured at the mill. Most of the trees were standing at the time the contract was made. To perform this contract it was necessary for the defendant to perform work and labor, but no other labor was required than such as was absolutely necessary to a delivery of the property. It was necessary to sever the bodies of the trees from the stump, and cut them into sections suitable for delivery. The logs contemplated by the contract were the trunks of the trees standing; they would be the trunks of the trees when cut and delivered at the mill, and they would be nothing else. The only change would be in their position and location. No manufacture of the property into anything that would essentially change its character was contemplated or required. | The labor bestowed by the defendant was upon his own property, and was all done in the single act of delivering it. He was not at work for the plaintiffs in any sense, but for himself.^ He was only doing what his obligation to deliver rendered necessary. The contract, in all its legal elements, was simply for the sale of all the logs that the specified trees would make, to be delivered by the defendant at the mill. The property was not to be manufactured, or made into anything essentially different from what it was when the contract was made. The construction we put upon this contract takes it outside of the mass of the cases referred to by the counsel for the defendant. The contract in this case is identical in all respects except name, with that sought to be enforced in Smith v. Surman, 9 B. & C. 561, and that was held to be within the statute. The case most nearly in conflict is that of Clayton v. Andrews, 4 Burr. 2101. That was a contract for the sale of wheat to be [68] threshed and delivered at a future day. The court held it not to be within the statute, but it was upon the ground that it was an executory contract, which the courts in England at that day did not consider as within the statute. We see no error in the ruling of the court below, and the -judgment is affirmed.