
    Robert A. Robertson & James S. Polhemus v. Eleazar S. Vaughn & David Vaughn.
    Transferred from Supreme Court .
    A contract for the purchase of articles deliverable on a future day, to be manufactured by the vendor, is a contract for work and labor, and therefore is not within the Statute of Frauds, even when all the materials are furnished by the manufacturer.
    The law was so settled by the decision of the Supreme Court in Jewett v. Fitch, 8 Cowen, 215 ; and if that decision is erroneous, the Court of Appeals is alone competent to correct the error.
    Semble.—That the law is otherwise settled in England and in Massachusetts.
    Ques.—Whether a new statute similar to a Geo. IV.,- c. 14, is not r.eq.uired?
    
    (Before Duer and Mason, J.J.)
    July 1;
    July 15, 1850.
    This was an. action of trespass on the case to recover for the non-delivery of one thousand molasses shocks and heads, under a contract between the plaintiffs and the defendants. The cause was tried before the Honorable Elisha P. Hurlbut, one of the justices of the Supreme Court, without a jury, on the 13th day of July, 1848, by agreement of parties.
    
      On the trial the plaintiffs' counsel called as a witness,
    
      Robert A. Weydale, who being sworn, testified: I know the plaintiffs in this suit, know one of the defendants, think Mr. E. S. Yaughn. I am the plaintiffs’ book-keeper. Mr. Yaughn was at our office on the 5th day of December, 1846. He made a contract with the plaintiffs to make and deliver to the plaintiffs one thousand molasses sho.oks and heads ; they were to be delivered to the plaintiffs in the city of New York, as soon after the opening of the navigation as they could conveniently be brought down, at one dollar twelve-and-a-half cents for each shook and head, to be paid for by plaintiffs on delivery, one-half in cash, and one-half in the note of the plaintiffs at four months after delivery. The defendants live at Glenn’s Falls, in this state. The defendant said the shooks were to be made. Witness afterwards saw the same defendant in New York, in the latter part of June, 1847, he had shooks and heads with him. Witness, at the request of plaintiffs, made a demand for the delivery to the plaintiffs of the one thousand shooks and heads, on the 80th of June, 1847, and at the same time offered to pay for them one-half in cash and the note of the plaintiffs at four months for the other half. The defendant refused to deliver them.
    On cross-examination, witness testified, shooks afterwards went up twenty-five to thirty-seven-and-a-ha.lf cents, when I applied to Mr. Yaughn to deliver the shooks, he denied ever having made any contract. The defendant made the contract with Mr. Robertson. I think Mr. Polhemus was present.
    The plaintiffs’ counsel then called as a witness,
    
      William R. Graham, who being sworn, testified that he knew the defendant E. S. Yaughn. Defendant called on him in the latter part of June, 1847, said he had 900 or 1000 molasses shooks and heads to dispose of, and wanted witness to assist him in selling them. Witness was a dealer in them. Told defendant he would assist him. Witness mentioned names of several parties, dealers in the articles, to whom he would apply.. Among others, named the plaintiffs. Defendant then told witness not to go to plaintiffs, as he had made a contract with them formerly for this lot of shooks, but that owing to some difficulty or misunderstanding he did not wish me to call on them to make the sale to them. I afterwards sold the shocks for the defendant.
    These shooks were of a superior quality, made better than ordinarily, as if made to order. The hoops were larger and better finished ; were worth more than the ordinary kind in the market. The fair market price of shooks and heads was, at this time, from $1 40 to $1 45, each.
    On cross-examination, witness said, the defendant said he had a contract with the plaintiffs for these shooks.
    The counsel for the defendant admitted that the navigation alluded to in the plaintiffs’ declaration was open at the time specified therein; and also admitted the partnership of plaintiffs and defendants.
    The plaintiffs’ counsel then rested his case.
    The counsel for the defendants then moved for a nonsuit, on the grounds,
    That the contract, if any, alleged in the plaintiffs’ declaration, was void by the statute of frauds.
    I. There being no note or memorandum in writing of the contract, and signed by the party to be charged thereby.
    II. That no money was paid by the purchasers nor was any part of the goods delivered by the defendants.
    The court denied the motion, and the counsel for the defendants excepted.
    The defendants’ counsel then offered and read in evidence the following letter from the plaintiffs to the defendants, to show that no contract had ever been made between the parties. (The signature to which was admitted by the counsel for the plaintiffs to be in the handwriting of Mr. Polhemus, one of the plaintiffs.)
    Mess. E. S. & D. Vaughn,
    Gentlemen.—We have been expecting to hear from you for some time back, in answer to an inquiry as to what you have been making in the way of cooperage this winter, and what you would have on hand to sell at the opening of navigation; hoping to hear from you in reply, we are yours, truly.
    Troy, April 27,1847. Robertson & Polhemvs,
    281 Pearl St., New York.
    To Messrs. E. S. & D. Vaughn,
    Glenn’s Falls, Saratoga Co., N. Y.
    Postmarked, (Troy, N. Y. Apr. 28.)
    The defendants’ counsel then rested.
    The. plaintiffs’ counsel then recalled Robert A. Weydale, who further testified, that at the time Mr. Vaughn made the contract with the plaintiffs in December, 1846, there was some, talk about sugar shoolcs also, but there was no contract for any sugar shooks, as Vaughn stated that" he had never made them, and did not know what they would cost until he went home and enquired.
    The judge gave a judgment for the plaintiffs for $300, and a new trial was now moved for upon a case made by the defendants, with leave to either party to turn the same into a bill of exceptions.
    
      Brady for defendants, made and argued the following points :
    I. If any contract was ever made between the parties, the letter of the plaintiffs of the 27th April, 1847, is evidence to show that it had been rescinded by the parties prior to the commencement of the suit.
    II. The contract, if any existed, was void by the statute of frauds.
    1st. Being a contract for the sale of goods of the value of more than fifty dollars.
    2d. No note or memorandum in writing being made thereof at the time and subscribed by. the parties to be charged thereby.
    3d. No part of the goods were delivered by the vendors, or received by the purchasers.
    4. No part of the purchase money paid by the purchasers. 2 R. S. 2d Ed. 136, Sec. 3.
    III. It was a contract for the sale of goods and chattels and not for work and labor : the subject matter being ordinary articles of merchandise. The work and labor to have been performed, if any, was work and labor for the defendants and for their benefit, and not work and labor for the plaintiffs. Downs v. Ross, 23 Wend. 270 ; Shindler v. Houston, 1 Com. 251 ; Smith v. Surman, 9 Barn. & Cress. 561 ; Garbutt v. Watson, 5 Barn. & Ald. 613 ; Gardner v. Joy, 9 Met. 177 ; 9 Geo. IV., ch. 14.
    IV. The Judge erred in not nonsuiting the plaintiff, upon the grounds stated by the defendants’ counsel.
    
      Woodward for plaintiffs,
    relied upon Sewell v. Fitch, 8 Cow. 215, as a decisive authority.
    
      
      This and the three following eases were accidentally omitted in the last vot of these Reports.
    
   Br the Coübt.

Dueb, J.

We certainly think that this case is within the mischief that the statute of frauds was designed to prevent, and that the contract between the parties was substantially a contract for the sale of goods and merchandise, and not for work and labor ; but we cannot shut our eyes to the fact, that the case of Sewell v. Fitch (8 Cowen 215), as the counsel for the defendant found himself under the necessity of admitting, is not distinguishable from the present; and that no conflicting decisions are to be found in our own Reports. The contract, which the Supreme Court, in that case, held to be not within the statute, bore an entire analogy to that between the parties now before us, with the single exception, that it related to nails instead of shooks. It is true, that it would not be easy to reconcile Sewell v. Fitch with the cases in England and in Massachusetts, to which we were referred ; but for more than twenty years, it has been considered as evidence of the law in this state, and as such, has doubtless been followed in numerous instances by inferior tribunals. Under these circumstances, we think that it belongs only to the Court of ultimate jurisdiction to set aside the authority of the decision, and correct the error which it probably involves. - If all contracts between merchants and manufacturers for the purchase of goods, to be thereafter manufactured, are to be excepted from the statute of frauds, there seems to be little reason for retaining at all those provisions of the statute which relate to the sale of goods to be delivered on a future day, since it is hardly possible to imagine an exception more arbitrary in its 'nature, and more contrary to the policy upon which the statute 'is admitted to be founded. Such an exception, embracing as it does a very large class of cases, frequently of great amount in value, is, in its principle, equivalent to a repeal; and either the law itself should be abolished, as imposing a needless restraint upon the transactions of business, or, if the sound policy of the law must be admitted, an exception, repugnant to its spirit and destructive of its utility, should no longer be permitted to exist. A new statute, similar to 9 Geo. IV., c. 14, seems to be required, and should the attention of the Legislature be directed to the subject, would probably be passed ; hut we are not legislators, and as judges, must administer the law as we find it established.

Looking only to the effect of our decision upon the immediate parties in this suit, we do not at all regret the necessity of making it. From the most unworthy motives, the defendants deliberately broke a contract which they were in a condition to fulfil; they brought to this city the goods which they had manufactured under their contract with the plaintiffs, and yielding to the temptation of a higher price, sold them to another house : morally they had no right to the gains which they thus acquired, and the judgment which compels them to pay them over to the plaintiffs and punishes them with costs, is eminently just. The allegation that the contract was rescinded by the parties, the judge upon the trial rightly decided to he groundless.

The motion to set aside the judgment is denied with costs. 
      
       The provisions in 9 Geo. IV., c. 14, are, that when the materials are to be furnished by the manufacturer and amount in value to £10sterling, the contract must be in writing, and be signed by the party to be charged.
     