23 Wend. 270 | N.Y. Sup. Ct. | 1840
Lead Opinion
After advisement, the following opinion was delivered:
No part of the purchase money was paid, none of the property was delivered, and there was no writing between the parties. If, then, this was a contract for the sale of goods, the statute declares it void. 2 R. S. 136, § 3. The substance of the transaction may be stated in few words. The merchant or miller went to the farmer to purchase his wheat, a part of which was already threshed and in the granary, and the residue was in a course of preparation for market. The farmer said he would clean over again that which was in the granary, continue threshing that which was still in the straw, and within six days would be ready to deliver seven or eight hundred bushels. A contract was concluded for the pur- [ *272 ] chase *of that quantity, to be delivered by a specified day, and to be paid for on delivery. In still fewer words, defendant sold his wheat, and agreed to deliver it in a merchantable condition. It is said that this was, either in whole or in part, a contract for work and labor, and so not within the statute. But I think it was neither more nor less than a contract of sale; and if we are not tied down by the commentaries with which the statute of frauds has been so heavily overlaid, the agreement must be declared void.
It is not to be denied that a pretty large license was formerly taken in the construction of statutes. Refined and artificial distinctions were sometimes sanctioned for the purpose of taking cases out of the operation of legislative enactments, and a broad foundation was thus laid for the vast amount of legal controversy which has followed. It was said at Westminster Hall, more than seventy years ago, that the statute of frauds had not been explained at a less expense than one hundred thousand pounds sterling ; and Chancellor Kent, at the time he wrote his commentaries, thought the sum might then be put down at a million and upwards. 2 Kent's Comm. 513, note. These are both very safe estimates, and still the statute is not yet “ explained and it never will be, so long as it is held that a promise by the seller to thresh his grain, or to blow the chaff out of a bin of wheat before sending it to market, changes the contract of sale into an agreement for work and labor. Whatever may be the bearing of the earlier cases, the more recent decisions will qot leqd us into any such absurdity. If the thing §pld
In Towers v. Osborne, 1 Strange, 506, it was held by Pratt, Ch. J. that the contract was not within the statute, because there was not to be an im. mediate delivery of the goods. This decision was followed by Lord Mansfield, in Clayton v. Andrews, 4 Burr. 2101. But the doctrine that the statute does not apply to executory contracts was entirely exploded in Rondeau v. Wyatt, 2 H. Black. 63 ; and that case has been followed ever since. Cooper v. * Elston, 7 T. R. 14. Bennett v. Hull, 10 Johns. R. 364. Jackson v. Covert, 5 Wendell, 139. [ *273 ] The statute has little to do with any other than executory contracts, and it might better be repealed, than to say that such agreements are not within its influence.
The fact that the defendant was to deliver the wheat at another place, which probably enhanced the price which he was to receive, cannot aid the plaintiff’s ease. Astley v. Emery, 4 Maule & Selw. 262. The same fact will be found to have existed in many other cases ; but it has never been held a sufficient ground for taking the contract out of the operation of the statute.
Nothing remains but the fact that the wheat, though in existence, was not completely prepared for market at the time the contract was made. The cases to which we have been referred on this point, will not answer the plaintiff’s purpose. With a single exception, they all relate to contracts for the sale of a thing not then in existence, but which was to be constructed or manufactured by the vendor. In Towers v, Osborne, 2 Strange, 506, the chariot which the defendant bespoke, was not yet made. So of the oak pins, in Groves v. Buck, 3 Maule & Selw. 178 — the waggon, in Crookshank v. Burrell, 18 Johns. R. 58 — the buggy, in Mixer v. Howarth, 21 Pick. 205 — and the nails,in Sewell v. Fitch, 8 Cowen, 215. These decisions, whether right or wrong, cannot affect the present question.
The only case which can aid the plaintiffs, is Clayton v. Andrews, 4 Burr. 2101, where it was held, that a contract for the sale of unthreshed wheat, to be delivered at a future day, was not within the statute. The decision went upon the ground that the statute did not apply to executory contracts; and although that doctrine was expressly overruled in Rondeau v. Wyatt, 2 H. Black. 63, which has ever since been followed, yet such was the deference for the opinions of Lord Mansfield, that the courts struggled for a time to find out some other ground on which the decision could be supported. Lord Loughborough, in Rondeau v. Wyatt, said, “ there was some work to be performed, for it was necessary that the corn should be threshed before the delivery*but he was forced to admit that this [ *274 ] was a “ nice distinction.” It was, indeed, so “ nice” that it did
These cases show, that the English courts have got back again on to the firm foundation of reason and common sense. The statute of frauds is no longer a dead letter. We have never followed the case of Clayton v. Andrews, and have, therefore, no occasion for retracing our steps. Whether the decision in Sewall v. Fitch, 8 Cowen, 215, can be supported, is a ques
Dissenting Opinion
dissented, and delivered the following opinion:
It is entirely clear, on the cases decided by this court, that the contract in question is without the statute of frauds. Small v. Fitch, 8 Cowen, 215, 219, and the cases there cited. 2 Kent's Comm. 511, 12, note d, 3d ed. The wheat was none of it in a condition for transportation and delivery. Most of it was unthreshed, and that in the bin was to be cleaned. The contract was, in part, for work and labor in finishing the preparation of the whole, which both the English and New-York cases denied, until very lately, to be a sale of goods within the meaning of the statute of frauds. That statute respects a sale. The cases said it meant a sale unmixed with a contract of labor in preparing the article for delivery. I admit that the mere circumstance of agreeing to transport and deliver will not take away the character of a simple sale. Jackson v. Covert's adm'rs, 5 Wendell, 138. Astey v. Emery, 4 Maule & *Selw. 262. Nor do I deny, that [ *276 ] were the question open, a contract to manufacture and sell would more correctly be considered a sale within the statute. But I am not prepared to concede that the decisions for more than half a century, both at Westminster Hall and in this state, are so obviously absurd, that we ought now to overturn them. It is true, that the king’s bench have recently, A. D. 1822, repudiated the case of Clayton v. Andrews, 1767, after so long acting upon it (and the common pleas too) as having settled the doctrine of the very case at bar, a sale of wheat, understood by both parties to be unthreshed. Garbutt v. Watson, 1 Dowl. & Ryl. 219; 5 Barn. & Ald. 613, S. C. followed by Smith v. Surnam, 4 Mann. & Ryl. 455 : 9 Barn. & Cress. 561; and see Watts v. Friend, 5 Mann. & Ryl. 439, and the cases there cited; 10 Barn. & Cress. 446, S. C. Best, J. in Garbutt v. Watson, chose to characterize former adjudications of his court as absurd. We have not heretofore deemed, them so ; and if there be the least obligation to abide by rule founded on a settled course of-decision, the case in which he was taking part is not law. I think there is such an obligation. The principle of the rule existed, and was acted upon in England from the year 1720. It was then held in Towers v. Osborne, 1 Strange, 506, and Clayton v. Andrews proceeded upon that.
It will be perceived that I have treated the second objection taken at the trial as unfounded in point of fact. If the wheat in the bin had been cleaned, the contract for so much would have been void ; and it would have followed according to the settled doctrine in respect to such contracts, that the whole would have been void, and the judge should have nonsuited the plain
New trial granted.
