No. 1. Lee v. Griffin, 30 L. J. Q. B. 252, 253.

cannot be held to be universally true; and this proposition has already been qualified in Grafton v. Armitage, 2 C. B. 336, 15 L. J. C. P. 20, as is pointed out by the Court in Clay v. Yates.] Secondly, the letter from the testator, referring to the plaintiff's letter, may be used in order to make a memorandum within the Statute of Frauds. Ridgway v. Wharton, 6 H. L. C. 238, 27 L J. Ch. 46.

[HILL, J. Apart from any question on the Statute of

Frauds, I do not see what cause of action the plaintiff [* 253] has against the executor; the contract was never carried out owing to the death of the testatrix.]

Griffits, in support of the rule, was not heard.

absolute.

CROMPTON, J. I am of opinion that this rule must be made On the second point made for the plaintiff, there is no pretence for saying that there was written evidence of the contract; the case of Ridgway v. Wharton is obviously distinguishable; all that was there decided on this point was, that you cannot shut out a second document tendered to show what the contract was, and so make a contract in writing within the statute, if the document signed by the party refers to this other document. But in the present case, even supposing that the letter of Mrs. Penson refers to a letter written by the plaintiff, the two together would not have evidenced what the contract was; they would only show that there had been some talk as to the sets of teeth, but would not show what was the price, or indeed any of the terms of the supposed contract. Again, I agree with the observation of my Brother HILL, that, even apart from the Statute of Frauds, it is difficult to see any cause of action under the particular circumstances of the case. However, on the point which was made at the trial, whether the plaintiff could not succeed on the count for work, labour, and materials, I am also clearly of opinion against the plaintiff. Whether the cause of action be work and labour, or goods sold and delivered, depends on the particular nature of each individual contract, and when the contract is such that a chattel is ultimately to be delivered by the plaintiff to the defendant, when it has been sent, then the cause of action is goods sold and delivered. The case of Clay v. Yates turned, as my Brother HILL pointed out, upon the peculiar circumstances of the case. I have some doubt upon the propriety of the deciVOL. XXIII. — 13

sion; but we should be bound by it in a case precisely similar in its circumstances, which the present is not. I do not agree with the proposition, that whenever skill is to be exercised in carrying out the contract, that fact makes it a contract for work and labour, and not for the sale of a chattel; it may be the cause of action is for work and labour, when the materials supplied are merely ancillary, as in the case put of an attorney or printer. But in the present case the goods to be furnished, viz. the teeth, are the principal subject-matter; and the case is nearer that of a tailor, who measures for a garment and afterwards supplies the article fitted.

HILL, J. I am of the same opinion. I think the decision in Clay v. Yates perfectly correct, according to the particular subject-matter of the contract in that case, which was not a case of a chattel ordered by one of another, thereafter to be made by the one, and afterwards to be delivered to the other; but when the subject-matter of the contract is a chattel to be afterwards delivered, then the cause of action is goods sold and delivered, and the seller cannot sue for work and labour. In my opinion, Atkinson v. Bell is good law, subject only to the objection to the dictum of BAYLEY, J., which has been repudiated by MAULE, J., and ERLE, J., in Grafton v. Armitage, where the former says (see 2 C. B. at p. 339), "In order to sustain a count for work and labour, it is not necessary that the work and labour should be performed upon materials that are the property of the plaintiff" (sic; quære employer), or that are to be handed over to him. The proposition of BAYLEY, J., that where a person has bestowed work and labour on his own materials he cannot maintain an action for work and labour, is certainly not universally true; and TINDAL, Ch. J., as well as the other members of the Court, in Grafton v. Armitage, repudiated that doctrine, and explained that BAYLEY, J., must be regarded as speaking with reference to the particular circumstances. of the case then before this Court; and the same view was taken by the Court of Exchequer in Clay v. Yates; but the decision in the case of Atkinson v. Bell was regarded as good law by TINDAL, Ch. J., and by other learned Judges, viz., that when the substance of the contract is goods to be sold and delivered, a count for work and labour cannot be sustained: that is directly applicable to

the present case, and the plaintiff, therefore, would have [*254] been rightly nonsuited. This disposes of the *point made

for the plaintiff at the trial. But I do not see how, wholly irrespectively of the objections raised by the Statute of Frauds, the plaintiff had any right of action according to his own case. The facts being that an order was given by the deceased for two sets of teeth, to be made and fitted to her mouth, and which, when fitted, were to be delivered to her; and by no default of hers, she having died in the mean time, before they could be fitted, the contract was not performed, I do not see what right of action the plaintiff had against the executor.

is the

BLACKBURN, J. I am of the same opinion. It is clear that there was no sufficient memorandum of the contract within the Statute of Frauds. The other question is, whether the present was a contract for the sale of goods, or for work and labour. In order to ascertain this you must of course, in each case, look at the contract itself. the sale of a chattel, the proper form of action, if the employer refuses to accept the article when made, would be for not accepting. But if the work and labour be bestowed in such a manner as that the result would not be anything which could properly be said to be the subject of sale, then an action for work and labour proper remedy. An attorney employed to draw a deed is a familiar instance of the latter proposition; and it would be an abuse of language to say that the paper or parchment of the deed were goods sold and delivered. In Clay v. Yates the circumstances were peculiar, but had the contract been completed, it could scarcely perhaps have been said that the result was the sale of a chattel. In Atkinson v. Bell, had the contract been carried out, it would have resulted in the sale of the machine; and in Grafton v. Armitage, TINDAL, Ch. J., observes of that case, “The substance of the contract was, goods to be sold and delivered by party to the other." Taking that as the true criterion, Atkinson v. Bell, Grafton v. Armitage, and Clay v. Yates are not inconsistent; but the last case comes very near the line. Here, if the teeth bad been delivered and accepted, the contract for the sale of a chattel would have been complete. I do not think that the relative value of the labour and of the materials on which it is bestowed can in any case be the test of what is the cause of action; and that if Benvenuto Cellini had contracted to execute a work of art for another, much as the value of the skill might ex

If the contract be such that it will result in

the one

ceed that of the materials, the contract would have been none the less for the sale of a chattel. Rule absolute.

ENGLISH NOTES.

So far as relates to the form of pleading, the question whether a contract is a contract of sale or for work and labour is now comparatively unimportant. The question may still be important in relation to the Statute of Frauds (s. 17 of the Statute of Charles II. now embodied in s. 4 of the Sale of Goods Act, 1893).

The question was considered in another form in the case of AngloEgyptian Navigation Co. v. Rennie (1875), L. R. 10 C. P. 271, 44 L. J. C. P. 130, where it was held that a special contract for the making of boilers and fixing and fitting them to certain ships in consideration of certain payments by instalments, was a contract for work and labour and not for sale of the chattels; and that one of the boilers which was in the maker's hands ready to be fixed and fitted- while in the mean time the vessel for which it was intended had been lost at sea had not become the property of the ship-owners.

By the Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), s. 1 (1), "A contract for the sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part-owner and another."

AMERICAN NOTES.

In America several distinct rules have been laid down by different courts for distinguishing between contracts for the sale of goods and contracts for work and labor. The difference of opinion is due to the fact that, prior to the decision in the principal case, the English law on the subject was in an unsettled state, and the American courts, in attempting to follow English precedents, arrived at varying results. Burdick on Sales, 16-18.

One of the best known of the American rules is attributable to the opinion of SHAW, Ch. J., in Mixer v. Howarth, 21 Pickering (Mass.), 205, and is stated as follows in Goddard v. Binney, 115 Massachusetts, 450, 454-455: "The effect of these decisions we understand to be this, namely, that a contract for the sale of articles then existing, or such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods, to which the statute applies. But, on the other hand, if the goods are to be manufactured especially for the purchaser, and upon his special order, and not for the general market, the case is not within the statute." This rule has been adopted in other States. See Edwards v. Grand Trunk R. Co., 48 Maine, 379; Finney v. Apgar, 31 New Jersey Law, 266; Forsyth v. Mann, 68 Vermont, 116. And see Puget Sound Machinery Depot v. Rigby, 13 Washington, 264.

Another well-known rule is that adopted by the New York Court, which makes the question turn on whether or not the goods contracted for are in existence at the time of the contract. "It is held here by a long course of decisions, that an agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered, such as flour from wheat not yet ground, or nails to be made from iron belonging to the manufacturer, is not a contract of sale. The New York rule lays stress on the word sale. There must be a sale at the time the contract is made. The latest and most authoritative expression of the rule is found in a recent case in this Court (Parsons v. Loucks, 48 New York, 17, 19). The contrast between Parsons v. Loucks in this State, on the one hand, and Lee v. Griffin (supra), in England, on the other, is, that in the former case the word sale refers to the time of entering into the contract, while in the latter, reference is had to the time of delivery, as contemplated by the parties." Millard, 65 New York, 352, 359.

Cooke v.

See also Gadsden v. Lance, McMullan's Eq. Rep. (S. C.) 87.

Other tests have been laid down in other States. In Maryland, for example, where any work and labor are to be bestowed on the goods before delivery, the contract is held not to be one of sale. Eichelberger v. M'Cauley, 5 Harris & Johnson (Md.), 213; Bagby v. Walker, 78 Maryland, 239. In Connecticut the question of the ownership of the materials upon which the labor is expended is regarded as important. Atwater v. Hough, 29 Connecticut, 508. In New Hampshire the court seems to regard the question as turning upon whether the labor or the product is the essential consideration of the purchase. Noyes, 48 New Hampshire, 294; Prescott v. Locke, 51 id. 94.

Pitkin v.

In commenting upon the confusion in the American cases, Mr. Burdick says, in his book on Sales, p. 18: "Inasmuch as most of the State courts had committed themselves to one or other of the foregoing tests, before the decision of Lee v. Griffin, they have been unable to adopt its simple and satisfactory rule."

In some States, however, that rule has been adopted. See Pratt v. Miller, 109 Missouri, 78, where the various authorities are discussed.

Where it is understood that the goods are not to be manufactured by the vendor, but are to be procured by him of some other person who manufactures and sells them, and are to be delivered by the vendor to the purchaser for an agreed price as completed articles of merchandise, it has been held that the transaction is a sale of merchandise within the Statute of Frauds. Smalley v. Hamblin, 170 Massachusetts, 380.

See further, on the general topic, Browne on the Statute of Frauds, 5th ed., ss. 299-309; and a note to Pawelski v. Hargreaves, 47 New Jersey Law, 334, 54 American Reports, 162, 164-170.