33 Ind. App. 615 | Ind. Ct. App. | 1904
A demurrer to the appellee’s complaint for want of sufficient facts was overruled. It was alleged in the complaint that the defendants, the appellants, were retail shoe dealers in the city of' Elwood, Madison county, Indiana, and the appellee was a manufacturer of shoes in the city of Rochester, New York; that April 26, 1901, the appellants ordered of the appellee a certain line of shoes, to be manufactured by the appellee for the appellants in his factory at Rochester, and to be shipped August 1, 1901, and dated September 1, 1901, for which the appellants “agreed to pay the price thereon agreed for the said shoes;” that in accordance with the order the appellee proceeded to manufacture, and did manufacture, all the shoes so
The contract, not being alleged to have been in writing, must be regarded as oral. It is contended on behalf of the appellants that it is within the seventh section of our statute of frauds and perjuries (§6635 Burns 1901), which provides: “Ho contract for the sale of any goods, for the price of $50 dollars or more, shall be valid, unless the purchaser shall receive part of such property, or shall give something in earnest to bind the bargain or in part payment, or unless some note or memorandum in writing
In cases of contracts contemplating the manufacture of goods for one of the contracting parties by the other, or by a particular, designated manufacturer, from materials to be provided by the manufacturer, the consideration being the price or value of the finished goods to be delivered, there has been much diversity of decision both in England and America, as may readily be seen in the various treatises of text-writers on the subjects of sales and the statute of frauds, many of the eases being based on inconclusive reasons, and indicating a desire to escape from the comprehensive meaning of the statute, or resting upon precedents which manifest such a desire. If the controlling purpose of the contract be the employment of the labor of one of the parties for the accomplishment of a special result, rather than merely to procure the delivery of goods of a designated kind for the price or value, it would seem that the statute would not be applicable.
We will not seek to formulate a rule or doctrine on the subject, except so far as necessary to ascertain the limitations applicable to the facts alleged in this complaint. If the contract be one whereby one of the parties is to deliver to the other, for a price or value, certain goods to. be manufactured by the former from materials to be provided or furnished by him, and he be a person whose business is
Looking to the direct averments of the complaint, it appears therefrom that the goods Were manufactured by the plaintiff in the course of his general business, in accordance with an order for such goods- from the defendants, who were retail dealers in such goods; and there is nothing in the pleading from which to infer that they were not manufactured by the plaintiff in all respects from his own designs or models, already in use by him in the manufacture of the same kind of goods for his customers in general, or
Judgment reversed, with instruction to sustain the demurrer to the complaint.