
    Joseph Winship & Co. vs. Samuel J. Buzzard.
    The plaintiffs were gin-makers, and the action was upon a yerbal agreement to purchase a gin, to be delivered to defendant at a future day: — Held, that it was a question for the jury, whether the agreement was for the purchase of a gin already made, or for one to be manufactured; and, if for the latter, that the agreement was not within the statute of frauds.
    BEFORE MUNRO, J., AT NEWBERRY, FALL TERM, 1855.
    The report of his Honor, the presiding Judge is as follows :
    “ This was an action of assumpsit to recover the price of a cotton gin, which the plaintiffs alleged the defendant had contracted to purchase from them, through their agent, John M. Young.
    “ The testimony of the agent, Young, which was taken by commission, was as follows : That the' plaintiffs are employed in the manufacture of cotton gins, and reside in Atlanta, in the State of Georgia; that some time towards the close of the year 1852, or the beginning of 1853, the defendant contracted with him as the plaintiffs’ agent, for the purchase of a gin upon the following terms: on the part of the plaintiffs, the gin was warranted to gin out five bales of cotton, each bale weighing three hundred pounds, per day, and was to be delivered by them at Newberry Court House some time in the succeeding August. That the price to be paid for it by the defendant was one hundred and twenty •dollars, and to be paid on the 25th of December in the same year. That about the first of August the gin was sent by the plaintiffs from Atlanta to Newberry Court Housó, where it arrived in safety, hut that on its arrival the defendant refused to receive it, giving as his only reason for refusing to receive it, that it was right-handed instead of left-handed. This the witness explained, as meaning that the band run upon the right instead of the left hand side of the gin. That when the time agreed upon for, the payment of the price of the gin had arrived, this witness visited Newberry, and finding that the defendant still persisted in refusing to take the gin, he offered to put it up and to start it for him, but the defendant refused to permit him to do so. This witness also stated, that gins are sometimes made right-handed, and sometimes left-handed, but they are never made left-handed unless special instructions are given to that effect by the party ordering one; but that in the contract in question nothing was said by the defendant as to whether the gin was to be right or left-handed.
    “Here the plaintiffs’ testimony closed, when the defendant’s counsel moved for a nonsuit, upon the ground, that aS| the contract rested entirely in parol, it was void for want of conformity to the provisions of the 17th section of the statute of frauds. I granted the motion.”
    The plaintiffs appealed on the grounds:
    1. Because it is submitted, that the testimony established a contract for the sale of a cotton gin, and that the same was to be delivered at Newberry Court House, in August, 1853 ; and that the performance of the contract by the plaintiffs on their part entitled them to go to the jury.
    2. Because it is submitted that such performance 'of the contract by the plaintiffs, took the case out of the 17th section of the Statute of Frauds.
    3. Because the contract was sufficiently proved by the testimony to enable the plaintiffs to recover.
    
      Summer., for appellant.
    
      Baxter, contra.
   The opinion of the Court was delivered by

Glover, J.

The 17th section of the Statute of Frauds applies to contracts for the sale of goods,' wares and merchandize; but a distinction has been taken between contracts of sale merely and contracts for the sale of goods, upon which work and labor is previously to be bestowed: (Rondeau vs. Wyatt, 2 H. Bl. 63; and Bird vs. Muhlinbrink, 1 Rich. 199.) Sales of things which exist in solido at the time of sale, although the contract be executory and the goods to be delivered at a different place, are within the statute: (Cooper vs. Elston, 7 T. R. 14.), Whereas, a contract for a chariot to be made, (Towers vs. Osborne, Str. 506,) or for the purchase of a quantity of oak pins to be cut and delivered, (Groves vs. Buck, 3 M. & S. 178,) or for a quantity of corn to be thrashed out, (Clayton vs. Andrews, 4 Burr. 2101,) were held not to be within the statute.

It is not surprising that great embarrassment has been felt, and that many refined distinctions have been taken in construing a statute which professes to regulate almost all the contracts which are entered into by men, and which was expressly intended to suppress fraud. To carry out the intention of the statute, and to prevent a perpetration of fraud by a strict adherence to the letter, an interpretation is sometimes given which might seem to contradict the language employed.

In this case, as there was neither the payment of earnest-money, acceptance of the article, nor a written agreement, the plaintiffs cannot r'ecover unless work and labor were to be bestowed on the article which was the subject of the contract. The evidence on this point was very inconclusive, and the Court is induced to set aside the nonsuit .only on ,the ground, that a jury may answer, if the parties understood that the contract was for the sale of a gin merely, or for the sale of a gin on which work and labor were to be bestowed before delivery.

O’Neall, Wardlaw and Withers, JJ., concurred.

Motion granted.  