Gardner v. Joy, 50 Mass. 177

Gardner v. Joy

50 Mass. 177 | Mass. | 1845

Shaw, C. J.

Difficult questions frequently arise under the clause, in the statute of frauds, (Rev. Sts. c. 74, § 4,) which provides that “ no contract for the sale of any goods, wares or merchandize, for the price of fifty dollars or more, shall he good or valid, unless ” (among things not material in this case) “ some note or memorandum in writing of the bargain be mad< and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.” But the difficulty arises, not so much from any uncertainty in the rule, as from the infinitely various shades of different contracts. 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. Spencer v. Cone, 1 Met. 283. Mixer v. Howarth, 21 Pick. 205.

In the present case, the question as to the nature and terms of the contract depends on the testimony of one witness, who testified as follows : [Here the chief justice recited the testimony of Dillingham, as stated in the report of the trial.] The presiding judge instructed the jury, that if they were satisfied that there was no note or memorandum in writing, (a fact to be decided by them on the evidence,) the action could not be sustained, being within the statute of frauds.

The court are of opinion that this instruction was right. It was essentially a contract of sale. The inquiry was for the price of candles; the quantity, price and terms of sale were fixed, and the mode in which they should be put up." The only reference to the fact, that they were not then made and ready for delivery, was in regard to the time at which they would be ready for delivery; and the fact, that they were to be manufactured, was stated as an indication of the time of delivery, which was otherwise left uncertain. There was some question, whether Joy used the term would or should manufacture them in the course of the summer; but the meaning, we think, is the same. Whether, after stipulating for the terms *180of sale, except the time, the question was at what time they would be delivered, and he said, I will manufacture them, or shall manufacture them, in the course of the summer; either would be the annunciation of a fact, indicating and fixing the time of delivery. The case seems not to be distinguishable from that of Garbutt v. Watson, 5 Barn. & Ald. 613, where the contract by the plaintiffs, who were millers, was for the sale of one hundred sacks of flour, to be got ready in three weeks, the flour not being prepared at the time, so as to be capable of delivery. It was held to be a contract of sale, and within the statute.

Judgment on the verdict.