13 Wash. 264 | Wash. | 1895
The opinion of the court was delivered by
This action was brought to recover damages alleged to have been occasionéd by the re
The only ground upon which it is claimed by the respondents that this action of the court can be sustained is that the proofs showed that the contract in question was one for the sale of articles of personal property of the value of more than fifty dollars, and that no memorandum in writing of the contract was made and signed by the parties to be charged thereby, or by any person thereunto by them lawfully authorized. The appellant claims that the contract was not for the sale of the several articles of property to he furnished, but was for the manufacture and furnishing of a mining and pumping plant, not within the statute of frauds, and required no memorandum in writing to give it force.
As to what contracts are within, and what without, the statute of frauds has been a question often before the courts, and from the cases no uniform rule can he formulated. It may, however, be fairly deduced from the authorities that a contract for the manufacture and delivery of an article will not he within the statute of frauds as to sales of such property, if the completed article will not be one which would, under the circumstances of the case, be a marketable commodity. If the article when so completed is one of special value to the one for whom it was manufactured and would be of comparatively little value as an article of merchandise to be held for sale, the contract will be construed to be one for manufacture and not of sale.
In the case at bar there was testimony which tended
It is not seriously contended on the part- of the respondents but that if, after the placing of this order, the plaintiff had gone on and itself manufactured each of the articles necessary to constitute the plant in accordance with the plans and specifications, such would
That such a contract would not be within the statute can be fairly deduced from what was held by this court in the cases of Fox v. Utter, 6 Wash. 299 (33 Pac. 354), and Puget Sound Iron Co. v. Worthington, 2 Wash. T. 472 (7 Pac. 882, 886); for while it is true that the exact question presented by this record was not involved in either of those cases, yet the general doctrine was announced in each of them that a contract for the manufacture and delivery of articles of personal property of the value of more than $50 was not within the statute of frauds. The question as to
The judgment will be reversed and the cause remanded with instructions to deny the motion for a non-suit.
Scott, Dunbar,, Anders and Gordon, JJ., concur.