
    Sewall and Sewall against Fitch and Goodwin.
    Assumpsit to recover damages for not delivering a quantity of cut nails to the plaintiffs, pursuant to the de fendant’s agreement.
    The cause was tried at the New York circuit, March 25th, 1826, before Duke, 0. Judge, who sealed a bill of exceptions at the request of the defendants, presenting the following facts :
    Greele, a commission merchant, not a broker, the authorized agent of the plaintiffs, but without disclosing ° 1 c' their names, contracted for 800 casks of Thames manufact01T cut na^s> at 5 1-2 cents per pound, with a clerk of the defendants, in February, 1825. The clerk told him the quantity was not then on hand, but that they could be socm knocked off or made, and be obtained from the manu- # 3 factory at Norwhich, in the state of Connecticut, on the opening of the navigation. Greele told the clerk he wanted *the nails to supply an order. Greele, being introduced a witness for the plaintiffs, and objected to as incompetent, swore to the above facts on his voire dire; and also that he considered himself personally bound to make good t^ie contract> and give his own notes if required. That he immediately reduced the agreement to writing, and sent it the plaintiffs. That he acted for their benefit solely, an(j had no interest in the contract,
    . The judge held him competent; and, being sworn m cikei] he repeated the above facts; and other witnesses Were sworn for the plaintiffs, who differed from Greele in particulars, not otherwise material than as the difference migtt affect his credit with the jury. It appeared, farther, that after the bargain, Greele disclosed the name of his principals to the defendants; and that the memorandum of the contract made by him was lost. That at the time of the contract, the defendants were known to ■ the plaintiffs to be the agents of the Thames company, who were to furnish the nails.
    
      An agent contracting to hte7prindpalfto a competent principal in an the vendoíTfor the non-degoods, though he did not disclose his agency at the time,
    a ^mmnoran? dum of a sale byS°anS agent having merely parol ant nonty, satisfies.the frauds? means be^n eer, or broker, ofboVhparttos? a°eiit!ieofmthe vendee, or the party K g.' a commission merchant author-goods in' behalf of a distant
    
      fidd «from 2 Chit Rep. this’case?as to a memorandum of guaranty made by an agent. The statute requiring a memorandum, &c., of goods sold above the value of $25, means goods in solido. It extends both to contracts executed and executory for the sale of such. But where the goods are yet to be manufactured, or any labor performed about them, the contract is, more properly, for work and labor and materials to be found; and, though by parol, is not within the statute.
    
      The defendants moved for a non-suit; but the judge decided that the memorandum took the case out of the statute of frauds; and that there was sufficient evidence of the contract to go to the jury. He charged that though the defendants were known to the plaintiffs as agents of the Thames company, yet, if they dealt in the transaction as principals, the action was well brought against them. That the memorandum was sufficient to take the case out of the statute of frauds; and the questions for the jury were, whether the contract with the defendants was proved ; and the amount of damages. The defendants excepted to the decision and charge of the judge. Verdict for the plaintiffs, of $500.
    
      H. W. Warner, now moved for a new trial.
    He said the defendants were known agents, and acted as such. The action should have been brought against their principals.
    Greele was an incompetent witness. (1 Phil. Ev. 100. 3 Stark. Ev. 1620.) In M'Brain v. Fortune, (3 Campb. *317,) it was held that, in an actipn for goods sold, a person who entered into a contract for the" purchase of the goods in his own name, is not a competent'witness, to prove that he purchased them as the agent of the defendant.
    Here was not a sufficient note in writing to satisfy the statute of frauds. (15 East, 103; 6 East, 408.)
    
      J. Platt, contra.
    There is nothing taking this case out of the general rule, that an agent is a competent witness for his principal. (Pal. on Agency, 279.) M'Brain v. Fortune was an action against the vendee: and the vendor called the agent. Clearly that case does not apply.
    The defendants were liable personally, though agents or factors, their principals' residing in a foreign country. To exempt themselves, they should have expressly insisted on not being bound. Otherwise, the inference is, that credit was given to them. (2 Liv. on Agency, 247; Pal. on Agency, 289; 13 John. 58, 77; 4 Stark, on Ev. 1620.)
    The contract is not void within the statute of frauds. Here was a written memorandum made by a competent agent. (7 Mass. Rep. 44; 5 Wheat. 326 ; 12 John. 102 ; 14 John. 484.) Beside, the nails were not yet manufactured. Goods, about which labor is to be performed to fit them for the sale, are not within the statute. (18 John. 58 ; 1 Str. 506; 4 Burr. 2101; 7 T. R. 14.)
    The finding of the jury is conclusive, on the question whether the defendants intended to make themselves liable.
   Curia, per Savage, Oh. J.

That the defendants, although agents for the Thames company, might contract on their own account, there can be no doubt; and the verdict of the jury has so found that fact. Whether the verdict be against evidence, is not a proper question upon this bill of exceptions. It must, therefore, stand, unless the judge erred in some of his decisions, which were excepted to.

To the competency of the witness, Greele, there is no objection, except his interest, and the question I apprehend, is not whether he might be interested in the contract *when made; but has he an interest in the event of this suit ? That he could have no possible interest, I. think is apparent. Those whom he represented, and on whose behalf his interest, if any, arose, affirmed the contract. If they recover, the witness makes nothing: if they fail, he loses nothing. Had the parties been reversed, perhaps it would have been different. Then, indeed, it might have been said, as in M'Brain v. Fortune, that if his principals were not bound, the agent would be. But that is an objection which cannot exist in the present suit.

The only question then, is, whether the contract was obligatory upon the defendants, within the statute of frauds; or as being a case not reached by that statute.

If this were a contract of which a note or memorandum in writing was necessary, to make it obligatory, it is clear to my mind, that no such memorandum was made as the statute contemplates. It requires, “ that some note or memorandum in writing of the said bargain be made, and signed' by the parties to be charged by such contract, or their agents thereunto lawfully authorized.” Grreele, in this case, was not the agent of the defendant, any more than the plaintiffs would have been. He was neither an auctioneer nor a broker. Hor had he any authority whatever from the defendants to make a note or memorandum.

'"'But, in this case, no memorandum at all was necessary. The contract was not for the sale of goods then in solido ; but for work and labor, in part, in the making of the articles to be delivered. A distinction in such cases is well settled, both in England and in this state. Formerly, the king’s bench held that the statute did not apply to ex-ecutory contracts. (Towers v. Osborne, 1 Str. 506 ; Clayton v. Andrews, 4 Burr. 2101,) In neither of those cases, however, was it necessary to rely upon such a principle. The first was for a coach, to be made; and the second for grain yet to be threshed. So that those cases were rightly determined, though upon a wrong principle, as has since been held, both by the common pleas and king’s bench. In Ron deau v. Wyatt, (2 H. Bl. 63,) Lord Loughborough said) “The case of Towers v. Osborne, (1 Str. 506,) was plainly out of the statute, not because it was an executory contract, ag bas been said, but because it was for work and labor to be done, and materials and other necessary things to be found, which is different from a mere contract of sale, tc which species of contract alone the statute is applicable.” The same point was so decided in Cooper v. Elston, (7 T. R. 14,) where the king’s bench adopt Rondeau v. Wyatt, as sound law, admitting the distinctions there taken.

The principle of these two cases has been adopted by this court in Bennett v. Hull, (10 John. 364,) and Crookshank v. Burrell, (18 John. 28.) The contract, in this case, was for the delivery of nails thereafter to be manufactured. It was therefore a contract, within the decisions cited, for work and labor and materials found; and so out of the statute.

I am of opinion that Greele was a competent witness, having no interest in the cause. That the contract was a valid one; and of course that the plaintiffs are entitled to recover. The motion for a new trial must be denied.

Hew trial denied. 
      
      
         So, on another branch of the statute:
      In Dixon v. Broomfield, (2 Chit. Rep. 205,) Parke moved to set aside a non-suit. The action was brought on a guaranty, in a note addressed to, and left at the plaintiff’s; which stated that 11 Mr. Broomfield called to say that he will be responsible for goods delivered to Mr. K”
      This was written by the clerk of the plaintiff in the presence of the defendant.
      Lord Ellenborootjh, 0. J. Was there any evidence that the defendant assented to it?
      Parke. Yes.
      Bayley, J. Had he signed it?
      Parke. No.
      Lord ElIiENBorotoh; 0. J., said, that if this was evidence, no one could safely go into a shop; for any person there might write down a guaranty upon which he might be made liable to a large amount.
      Rule refused.
     