The court were right in overruling the two last points. The plaintiff below, it is true, would not have recovered more than $50 had the defendant submitted to the justice’s judgment; but when he appealed to the common pleas, that court was not limited in jurisdiction, and the plaintiffs were entitled to recover all the damages they could prove, if they were entitled to recover any thing. So, also, the plaintiff’s intestate was ready to deliver the whole quantity, and would have done so, but for the default of the defendant, who was not ready to receive the wheat.
The only point in the case is whether the contract was within the statute of frauds, and therefore void. It is so in terms, but it has been held in some cases, where any thing remains to be done about the goods by the vendor, that the contract is not within the statute. The mere fact, however, of the article sold not being to be delivered immediately, does not take the case out of the statute.
The case of Bennett v. Hull, 10 Johns. R. 364, is not distinguishable from this : there apples were to be delivered, and the contract was held to be within the statute. Clayton v. Andrews, 4 Burr. 2101, is like this case, except that there the wheat was to be threshed. Where labor is to be performed to prepare the article for delivery, the contract is not within the statute ; as where a waggon was to be made, 18 Johns. R, 58, or rails to be manufactured, S Cowen, 219. There is nothing in this case to take the case out of the statute, and the judgment must be reversed.
See'tho cases of Cooper v. Elston, 7 T. R. 14 and Rondeau v. Wyatt, 2 H. Black. R. 63, establishing the same doctrine.