
    Thomas H. Spencer & another vs. Roger Cone & another.
    An agreement to make machines for a specified price, and to find the materials therefor, is not within the statute of frauds —Rev. Sts. c. 74, § 4.
    Assumpsit. The declaration alleged, and the evidence at the trial tended to prove, a special agreement between the parties, by which the plaintiffs undertook to make for the defendants ten stave machines, and find the materials therefor, for the price of $ 150 each, to be paid therefor by the defendants, and that the plaintiffs made and tendered the same to the defendants, who refused to accept or pay for them. Said agreement not being in writing, the defendants objected that it was within the statute of frauds : but Wilde, J. before whom the trial was had, overruled this objection, and the plaintiffs obtained a verdict. The defendants alleged exceptions to this ruling.
    
      Bishop and Sumner, for the defendants, referred to the opinion of Littledale, J. in the case of Smith v. Sminan, 9 Bam. & Ores. 573 — 575 ; and to Dole v. Siimpson, 21 Pick. 384.
    
      Byington, for the plaintiffs, relied on Mixer v. Howarth, 21 Pick. 205.
   Per Curiam.

This case is not distinguishable in principle from that of Mixer v. Howarth, 21 Pick. 205. The agreement was, in substance, for the furnishing of labor and materials, and not a contract of sale. It was therefore not required, by the statue of frauds, (Rev. Sts. c. 74, § 4,) to be in writing.

Judgment on the verdict.  