31 N.J.L. 266 | N.J. | 1865
From the statement of facts prefixed to this opinion, it will appear that the state of demand filed before the justice contained but a single claim, arising out of the sale and delivery to the defendant of certain arti
The points thus raised will be examined consecutively.
First. Was the agreement in question a sale of goods, or a contract for work, labor, and materials ?
There are few legal topics perplexed by a greater number of irreconcilable opinions than the question of law involved in the foregoing inquiry. In England the more recent cases conflict, in a very marked degree, with those of an earlier date; and in this country it is difficult to find any two judicatures that, upon the point suggested, have entirely concurred. Nor is this discordance so remarkable as, upon first blush, it might seem. It grows out of the difficulties inherent in the subject. The language of the statute is, “ that no contract for the sale of goods, wares, and merchandise, &c.;” and the problem has been, what is a sale within the policy of the clause? In Towers v. Osborne, 1 Strange 506, a decision occurring about forty-five years after the date of the act, we find the first judicial attempt at a solution. The facts were: the defendant “bespoke,” in the words of the report, “a chariot,” and after it was made refused to take it. The court agreed that the case was not within the reach of .the act, the grounds of conclusion being that the contract for sale contemplated by the designers of the statute, was one admitting of a present part payment and present delivery, since, by the performance of either act, the transaction could be validated. In effect, this case maintained that
But the test established by these cases was too clearly erroneous to last long, and accordingly the entire theory on which they were based was exploded by Lord Loughborough, in Rendeau v. Wyatt, 2 H. Bl. 63. The bargain sued on in that case was for the sale of a certain number of sacks of Hour, which the defendant was to deliver on board the vessels of the plaintiff. This contract being executory, according to the principle adopted in the decisions reported in Strange and Burrow, it was clearly unaffected by the statute of frauds; but the court, reviewing the ground previously passed, came to a contrary conclusion, rejecting altogether the doctrine of the non-applicability of the act to contracts^ which, by their terms, were performable in the future. In the same case Lord Loughborough pointed out the distinction so important to be observed in the application of the statute of frauds, between a sale and a contract for work and materials, and maintained that the former class was within its scope, but that the latter was beyond its control. This discrimination, then for the first time introduced, has exercised a most marked, if not controlling influence upon all subsequent judicial examinations of this subject. It is true that the later of the English cases have made the principle of little prac
From a careful examination of the English and American authorities and the principles illustrated by them, -I think the following general rules may be deduced, viz.: First. That a contract for the sale of goods which is purely executory, is as much within the statute as is one to be executed in presentí. Second. That where a contract is made for an article not existing at the time in solido — to use the expression of the old cases — and when such article is to be made according to order, and as a thing distinguished from the general business of the maker, then such contract is, in substance and effect, not for a sale, but for work and materials.
The first of the above rules is now received everywhere with entire judicial unanimity.
This being then, as it is conceived, the true rule of law upon this subject, it remains to be considered in its application to this case. My conclusion is, that the facts proved do not fall within the foregoing definition of a contract for work, labor, and materials. The articles agreed to be furnished were small pieces of wood in the rough, which could be conveniently turned into wagon spokes. The entire treaty between the parties indicates, in the clearest manner, that they both regarded the transaction as a sale. The plaintiff, in his state of demand, has, by treating it as a sale, expressed, in a very marked form, his own understanding of the true nature of the affair. It would be doing violence at once to the facts and the intentions of the parties for the court to hold the contract in question to be anything but a sale of the articles in question.
In principle the case seems to fall within the boundaries of that class of cases which exemplify the distinction between a mere preparation or slight alteration of the form of a thing which, in substance, exists at the time the contract is made, and the conversion of the raw material into the perfected form of the manufactured article. Thus it has been properly held, that the statute applies to an agreement for a certain number of sacks of flour, although the same were not ready for delivery, the flour being unground at the time; it being regarded that such alteration of the form of the article was a mere preparation of it for delivery on a sale. Garbutt v. Watson, 5 Barn. & Ald. 613. And the same distinction was recegnized in the case of a purchase of timber, part of which ivas standing at the time and was to be cut
The present case must rest on the same grounds. The transaction, as presented in the proofs, was a sale, and the alteration in the form of the article stipulated for was a preparation of such article for delivery.
But in the second place, admitting the circumstance of a sale, it is insisted that there were facts in evidence from which the court below, sitting as the judges of those facts, had the right to infer that the goods were delivered and actually accepted by the defendant.
It is admitted, that if there was any testimony from which such inference could have been rightfully drawn, this court cannot interfere with the judgment which has been rendered. But the case seems to me utterly devoid of such testimony. It is true the plaintiff proved that he took the articles and deposited them in the public highway, at a point designated by the defendant at the time of the bargain; that about a month after doing so he informed the defendant of the fact, who promised to pay him for them in a short time, and that, at a subsequent period, he had a second conversation of a similar purport. There was nothing to show that the defendant took possession of the articles, or, indeed, ever saw them.
It is obvious that the whole' of this transaction rests in parol, and the provision of the statute in question is a mere illusion, if it can be thus evaded. It is true, that many eases establish the proposition that there may be a constructive acceptance, which will satisfy- the legislative requirement. But no case has come under my notice which has gone the length to hold, that a deposit of goods in a place common to all persons alike, with a notification to the purchaser of such goods, accompanied by a mere promise of payment on his part, was the actual acceptance contemplated by the statute.
The judgment of the court below should be reversed.