After advisement, the following opinion was delivered:
By Bronson, J.
No part of the purchase money was paid, none of the property was delivered, and there was no writing between the parties. If, then, this was a contract for the sale of goods, the statute declares it void. 2 R. S. 136, § 3. The substance of the transaction may be stated in few words. The merchant or miller went to the farmer to purchase his wheat, a part of which was already threshed and in the granary, and the residue was in a course of preparation for market. The farmer said he would clean over again that which was in the granary, continue threshing that which was still in the straw, and within six days would be ready to deliver seven or eight hundred bushels. A contract was concluded for the pur- [ *272 ] chase *of that quantity, to be delivered by a specified day, and to be paid for on delivery. In still fewer words, defendant sold his wheat, and agreed to deliver it in a merchantable condition. It is said that this was, either in whole or in part, a contract for work and labor, and so not within the statute. But I think it was neither more nor less than a contract of sale; and if we are not tied down by the commentaries with which the statute of frauds has been so heavily overlaid, the agreement must be declared void.
It is not to be denied that a pretty large license was formerly taken in the construction of statutes. Refined and artificial distinctions were sometimes sanctioned for the purpose of taking cases out of the operation of legislative enactments, and a broad foundation was thus laid for the vast amount of legal controversy which has followed. It was said at Westminster Hall, more than seventy years ago, that the statute of frauds had not been explained at a less expense than one hundred thousand pounds sterling ; and Chancellor Kent, at the time he wrote his commentaries, thought the sum might then be put down at a million and upwards. 2 Kent's Comm. 513, note. These are both very safe estimates, and still the statute is not yet “ explained and it never will be, so long as it is held that a promise by the seller to thresh his grain, or to blow the chaff out of a bin of wheat before sending it to market, changes the contract of sale into an agreement for work and labor. Whatever may be the bearing of the earlier cases, the more recent decisions will qot leqd us into any such absurdity. If the thing §pld [272] exist at the time in solido, the mere fact that something remains to be done to put it in a marketable condition, will not take the contract out of the operation of the statute.
In Towers v. Osborne, 1 Strange, 506, it was held by Pratt, Ch. J. that the contract was not within the statute, because there was not to be an im. mediate delivery of the goods. This decision was followed by Lord Mansfield, in Clayton v. Andrews, 4 Burr. 2101. But the doctrine that the statute does not apply to executory contracts was entirely exploded in Rondeau v. Wyatt, 2 H. Black. 63 ; and that case has been followed ever since. Cooper v. * Elston, 7 T. R. 14. Bennett v. Hull, 10 Johns. R. 364. Jackson v. Covert, 5 Wendell, 139. [ *273 ] The statute has little to do with any other than executory contracts, and it might better be repealed, than to say that such agreements are not within its influence.
The fact that the defendant was to deliver the wheat at another place, which probably enhanced the price which he was to receive, cannot aid the plaintiff’s ease. Astley v. Emery, 4 Maule & Selw. 262. The same fact will be found to have existed in many other cases ; but it has never been held a sufficient ground for taking the contract out of the operation of the statute.
Nothing remains but the fact that the wheat, though in existence, was not completely prepared for market at the time the contract was made. The cases to which we have been referred on this point, will not answer the plaintiff’s purpose. With a single exception, they all relate to contracts for the sale of a thing not then in existence, but which was to be constructed or manufactured by the vendor. In Towers v, Osborne, 2 Strange, 506, the chariot which the defendant bespoke, was not yet made. So of the oak pins, in Groves v. Buck, 3 Maule & Selw. 178 — the waggon, in Crookshank v. Burrell, 18 Johns. R. 58 — the buggy, in Mixer v. Howarth, 21 Pick. 205 — and the nails,in Sewell v. Fitch, 8 Cowen, 215. These decisions, whether right or wrong, cannot affect the present question.
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After advisement, the following opinion was delivered:
By Bronson, J.
No part of the purchase money was paid, none of the property was delivered, and there was no writing between the parties. If, then, this was a contract for the sale of goods, the statute declares it void. 2 R. S. 136, § 3. The substance of the transaction may be stated in few words. The merchant or miller went to the farmer to purchase his wheat, a part of which was already threshed and in the granary, and the residue was in a course of preparation for market. The farmer said he would clean over again that which was in the granary, continue threshing that which was still in the straw, and within six days would be ready to deliver seven or eight hundred bushels. A contract was concluded for the pur- [ *272 ] chase *of that quantity, to be delivered by a specified day, and to be paid for on delivery. In still fewer words, defendant sold his wheat, and agreed to deliver it in a merchantable condition. It is said that this was, either in whole or in part, a contract for work and labor, and so not within the statute. But I think it was neither more nor less than a contract of sale; and if we are not tied down by the commentaries with which the statute of frauds has been so heavily overlaid, the agreement must be declared void.
It is not to be denied that a pretty large license was formerly taken in the construction of statutes. Refined and artificial distinctions were sometimes sanctioned for the purpose of taking cases out of the operation of legislative enactments, and a broad foundation was thus laid for the vast amount of legal controversy which has followed. It was said at Westminster Hall, more than seventy years ago, that the statute of frauds had not been explained at a less expense than one hundred thousand pounds sterling ; and Chancellor Kent, at the time he wrote his commentaries, thought the sum might then be put down at a million and upwards. 2 Kent's Comm. 513, note. These are both very safe estimates, and still the statute is not yet “ explained and it never will be, so long as it is held that a promise by the seller to thresh his grain, or to blow the chaff out of a bin of wheat before sending it to market, changes the contract of sale into an agreement for work and labor. Whatever may be the bearing of the earlier cases, the more recent decisions will qot leqd us into any such absurdity. If the thing §pld [272] exist at the time in solido, the mere fact that something remains to be done to put it in a marketable condition, will not take the contract out of the operation of the statute.
In Towers v. Osborne, 1 Strange, 506, it was held by Pratt, Ch. J. that the contract was not within the statute, because there was not to be an im. mediate delivery of the goods. This decision was followed by Lord Mansfield, in Clayton v. Andrews, 4 Burr. 2101. But the doctrine that the statute does not apply to executory contracts was entirely exploded in Rondeau v. Wyatt, 2 H. Black. 63 ; and that case has been followed ever since. Cooper v. * Elston, 7 T. R. 14. Bennett v. Hull, 10 Johns. R. 364. Jackson v. Covert, 5 Wendell, 139. [ *273 ] The statute has little to do with any other than executory contracts, and it might better be repealed, than to say that such agreements are not within its influence.
The fact that the defendant was to deliver the wheat at another place, which probably enhanced the price which he was to receive, cannot aid the plaintiff’s ease. Astley v. Emery, 4 Maule & Selw. 262. The same fact will be found to have existed in many other cases ; but it has never been held a sufficient ground for taking the contract out of the operation of the statute.
Nothing remains but the fact that the wheat, though in existence, was not completely prepared for market at the time the contract was made. The cases to which we have been referred on this point, will not answer the plaintiff’s purpose. With a single exception, they all relate to contracts for the sale of a thing not then in existence, but which was to be constructed or manufactured by the vendor. In Towers v, Osborne, 2 Strange, 506, the chariot which the defendant bespoke, was not yet made. So of the oak pins, in Groves v. Buck, 3 Maule & Selw. 178 — the waggon, in Crookshank v. Burrell, 18 Johns. R. 58 — the buggy, in Mixer v. Howarth, 21 Pick. 205 — and the nails,in Sewell v. Fitch, 8 Cowen, 215. These decisions, whether right or wrong, cannot affect the present question.
The only case which can aid the plaintiffs, is Clayton v. Andrews, 4 Burr. 2101, where it was held, that a contract for the sale of unthreshed wheat, to be delivered at a future day, was not within the statute. The decision went upon the ground that the statute did not apply to executory contracts; and although that doctrine was expressly overruled in Rondeau v. Wyatt, 2 H. Black. 63, which has ever since been followed, yet such was the deference for the opinions of Lord Mansfield, that the courts struggled for a time to find out some other ground on which the decision could be supported. Lord Loughborough, in Rondeau v. Wyatt, said, “ there was some work to be performed, for it was necessary that the corn should be threshed before the delivery*but he was forced to admit that this [ *274 ] was a “ nice distinction.” It was, indeed, so “ nice” that it did [274] not occur to the mind of Lord Mansfield in making the decision, and has never, I believe, been sanctioned by any case in Westminister Hall. But on the contrary, when it became necessary to pass upon the point, the distinction was pronounced absurd, and the case of Clayton v. Andrews, in every possible view of it, was expressly overruled. Garbutt v. Watson, 1 D. & R. 219, and 5 B. & Ald. 613, S. C. The defendant agreed by parol for the purchase of 300 sacks of flour, not then ground, to be prepared and shipped at a future day. All the judges agreed, that the case of Clayton v. Andrews could not be supported, and held that the contract was within the statute. Best J. said, it was "purely a contract for the sale of goods. It is absurd to consider it as a contract for the sale of flour, and for so much work and labor to be performed for the buyer. It is no more than a contract for the sale of so much flour, the seller undertaking to put it into that condition in which he contracts to sell it.” This is a stronger case than the one at bar, for the flour had not been manufactured — it did not exist at the time of making the contract. This decision was followed up by Smith v. Surman, 4 Man. & Ryl. 455, and 9 Barn. & Cres. 561, S. C. The defendant agreed to purchase a quantity of timber of the plaintiff, and the contract ivas held within the statute, although a part of the trees were standing at the time of the bargain, and were afterwards to be cut by the vendor. Bayley, J. denied that it was “ a mixed contract for goods and chattels, and for work and labor to be bestowed and performed” by the vendor for the vendee. He said it was “ a contract for the future sale of the timber, when it should be in a fit stale for delivery. The vendor, in felling the timber and preparing it for delivery, was, in my opinion, doing work for himself, and not for the vendee.” Littledale, J. said, “ a contract for mere work and labor is not expressly mentioned, and may therefore not be within the statute ; but where the contracting parties contemplate a sale of goods, although the subject matter, at the time of. making the [ *275 ] contract, may not exist as goods, *but is to be wrought into that state by the vendor's bestowing work and labor upon his raw materials, that, in my opinion, is a case within the statute.” He added, “ it appears to me to be sufficient, if, at the time of the completion of the contract, the subject mutter be goods, wares and merchandizes.” In Watts v. Friend, 5 Man. & Ryl. 439, and 10 Barn. & Cres. 446, S. C., the contract was for the sale of a crop to be raised — the seed not having yet been put into the ground — and it was held void within the statute, for not being in writing.
These cases show, that the English courts have got back again on to the firm foundation of reason and common sense. The statute of frauds is no longer a dead letter. We have never followed the case of Clayton v. Andrews, and have, therefore, no occasion for retracing our steps. Whether the decision in Sewall v. Fitch, 8 Cowen, 215, can be supported, is a ques[275] tion which need not now be considered: It is enough for the present, that it is not a case in point.
The Chief Justice concurred.