43 P. 866 | Or. | 1896
To determine whether a given contract concerning personal property, which does not exist in specie at the time it is entered into, but must be manufactured and brought into being under the contract, comes within the statute of frauds, is not without difficulty, and the decisions are by no means reconcilable. The chief difficulty in all such cases is encountered in determining when the contract is substantially for the sale of personal property to be executed in the future, and when for work and labor and material only. If the former, it is within the statute; if the latter, it is not. Thus far the authorities, except in the state of New York, are substantially agreed; but there have been numerous decisions and much diversity and even conflict of opinion in relation to a proper rule by which to determine whether a contract is in fact for the sale of personal property, and therefore within the statute, or for work and labor and material furnished, and so without the statute. There appear to be substantially three distinct views upon the statute, which, for convenience, are generally designated as the English, the New York, and the Massachusetts rules, as represented by the decisions of their respective courts. In England, after a long series of cases in which various tests have been suggested, the rule seems to have been settled in Lee v. Griffin, 1 Best and Smith, 272, that “ If the contract be such that, when carried out, it would result in the sale of a chattel, the party cannot sue for work and
In New York the rule prevails that a contract concerning personal property not existing in solido at the time of the contract, but which the vendor is to manufacture or put in condition for delivery, such as the woodwork for a wagon, or wheat not yet threshed, or nails to be made from iron belonging to the manufacturer, and the like, is not within the statute: Crookshank v. Burrell, 18 Johns. 58 (9 Am. Dec. 187); Downs v. Ross, 23 Wend. 270; Sewall v. Fitch, 8 Cow. 215: Parsons v. Loucks, 48 N. Y. 17 (8 Am. Rep. 517); Cooke v. Millard, 65 N. Y. 352 (22 Am. Rep. 619); Higgins v. Murray, 73 N. Y. 252. But this rule seems to be peculiar to that state.
By the Massachusetts rule the test is not the existence or nonexistence of the commodity at the time of the contract, as in New York, or whether the contract will ultimately result in the transfer of the title of a chattel from the vendor to the vendee, as in England, but whether the article is such as the manufacturer ordinarily produces in the course of business, and for the trade, or as the result of a special order and for special purposes. If the
Until legislation shall assert itself more positively the courts are put to their election as between these three rules, which, though each has its own merits, are not to be reconciled with one another. In the absence of a statute substantially the same as Lord Tenterden’s Act, we are unwilling to go to the extent of the doctrine of Lee v. Griffin, and in this case it is unnecessary for us to give a preference to either the New York or Massachusetts rule, because the contract in question is valid under either. It would be excluded from the operation of the statute by the rule adopted in New York, because the subject matter of the contract did not exist in solido, or at all, at the time it was made; and it is not within the statute under the Massachusetts rule and the generally accepted American doctrine, because the ironwork was to be manufactured especially for the defendant, and upon his special order, according to a particular design, and was not such as the plaintiffs in the ordinary course of their business manufactured for the general trade. It follows that under either view the court below was in error in holding that the contract was void because not in writing. The judgment must therefore be reversed, and a new trial ordered. Reversed.