19 Barb. 455 | N.Y. Sup. Ct. | 1854
By the Court,
It is not easy to prescribe a test by which to determine, in every case, whether a contract is
The distinction wre are now considering is clearly stated in Mixer v. Howarth, (21 Pick. 205.) In that case the plaintiff had on hand a buggy, partly finished. It was agreed that he should finish it for the defendant, within a fortnight, but when it was finished the defendant refused to accept it. Shaw, Oh. J. said “.when., the contract is a contract of sale, either of an article then existing, or of articles which the vendor usually has for sale, in the course of his business, the statute applies to the contract, as well where it is to be executed at a future time, as
Another, and, as it seems to me, a still more accurate criterion is, to inquire whether the work and labor required, in order to prepare the subject matter of the contract for delivery, is to be done for the vendor himself, or for the vendee. In the former case, the contract is really a contract of sale, while in the latter it is a contract of hiring. (See Downs v. Ross, above cited. Also Smith v. Surman, 9 Barn. & Cress. 561. Watts v. Friend, 10 id. 446.) The application of this test to some of the reported cases, as, for example, that of Sewall v. Fitch, (8 Cowen, 215,) would render the correctness of their decision, to say the least, quite questionable. In the case last mentioned the plaintiffs were manufacturers. They received from the defendants an order for a quantity of goods which they did not then happen to have on hand. They proceeded to manufacture them. In doing-so, they were not performing work and labor for the defendants, but for themselves, so that they might have the goods which they had agreed to sell to the defendants. The thing contemplated by the parties was a sale, and not employment.
But ! do not see how, even by the most enlarged construction of the statute, it can be made to sustain the decision in the court below. Nothing was sold, or • intended to be sold.' The subject matter of the contract did not exist in solido at the time, so as' to bring the case within the principle stated by Bronson, J. in Downs v. Ross, Nor was the subject matter of the contract to become goods, upon the completion of the
Wright, Harris and Watson, Justices.]