
    JOHN J. BATES and another, Plaintiffs, v. DANIEL J. COSTER, Defendant.
    
      Statute of frauds — Sale—when void,.
    
    Defendant being desirous of purchasing a stallion colt, owned by the plaintiffs, agreed that, if they would have him. altered and keep him until he got well, he would give them $1,000 for him. The plaintiffs caused the colt to be altered, and, after his recovery, tendered him to defendant, who refused to receive him. Held, that the contract, being oral, was within the statute of frauds and void; that it was a contract of sale, and not for work and labor to be performed.
    When the thing bargained for is not in me at the time of the contract—could not then be delivered and accepted—but is to be afterwards manufactured or constructed, the contract is held to be one for work and labor, but, where the subject of the contract exists at the time in sólido, but something is agreed to be done to it, to put it in condition for use, or to make it marketable, the contract is held to be one of sale, and void within the statute. To this rule there are perhaps some exceptions.
    The case of Mead v. Case (33 Barb., 202) doubted.
    Exceptions ordered to be heard in the first instance at the General Term.
    The plaintiffs were the owners of a male colt, which the defendant proposed to purchase. After some conversation between the parties in regard to the appearance, value and price of the animal, the defendant said, according to the testimony of Baird, one of the plaintiffs, “ if you will have him altered and keep him until he gets well, I will give you $1,000; ” and that Baird, with whom the conversation was had, replied, that he would “take it and have him altered to-morrow.” According to another witness, the defendant said, “ if you will castrate him, when he is well I will give you $1,000 for him;” and that Baird replied, “I will do it.” The plaintiff caused the colt to be immediately castrated, and when well, offered him to the defendant, who refused to accept him. Thereupon this action was brought. On the trial, the plaintiffs were nonsuited, on the ground that the contract, being oral, was within the statute of frauds and void.
    An exception was interposed to this ruling, and the ease was ordered to be heard in the first instance at General Term.
    
      Samuel S. Ediok, for the plaintiffs,
    cited Mead v. Case (33 Barb., 202); Courtright v. Stewart (19 id., 457); Parker v. Schenck (28 id., 38); Downs v. Ross (23 Wend., 275), dissenting opinion of Cowen, J.; Bennett v. Hull (10 Johns., 364); Crookshank v. Burrell (18 id., 58); Parsons v. Loucks (48 N. Y., 17); Ferren v. O'Hara (62 Barb., 527).
    
      John O. Robinson, for the defendant,
    cited Shindler v. Houston (1 N. Y., 261); Caulkins v. Hellman, (47 id., 449).
   Bookes, J.:

The contract was not in writing; no part of the purchase-price was paid; nor was the property delivered.

If, therefore, the contract was one of sale, it was within the statute of frauds and void. This position is not denied; but it is insisted on the part of the plaintiffs, that the contract was for work and labor. When the thing bargained for is not m esse at -the time of the contract—could not then be delivered or accepted—but is to be afterwards constructed or manufactured, the contract is held to be one for work and labor; as for a wagon, thereafter to be constructed, and the like. This class of cases does not fall within the statute; and an action may be maintained for the contract-price, counting on the agreement as a contract for work, labor and materials. Again, when the subject of the contract exists at the time in solido, but something is agreed to be done to it, to put it in condition for use, or to make it marketable, the contract is held to be one of sale, and void within the statute. Yet the rule thus laid down has perhaps some exceptions. The case of Mead v. Case, is a notable instance.' The contract was for a marble monument, then complete in its general form, but was to be polished, lettered, finished and set up, at and for the price of $200. This was held to -be a contract for work, labor and materials, and binding. The court held that the agreement was one by which the •party was employed to make or manufacture a monument, not then in existence. In this view, undoubtedly, the case was well decided. But the decision was by a divided court, and is of doubtful authority on the facts proved. It seems in conflict with several more recent cases. In Fitzsimmons v. Woodruff, the contract was for a marble mantle, then selected by the party, which was to be set up, with certain alterations, in his house situated in another town, at and for the price of $80. This was held to be a contract of sale, and void under the statute. In Cooke v. Millard, the contract was for lumber to be dressed and delivered, and it was held to be a contract of sale, and void. In Smith v. N. Y. C. R. R. Co., it was held that a contract for the sale and delivery of a quantity of wood, at the time in standing trees, was not a contract for work and labor, so as to take the case out of the statute; and Woodruff, J., likened that case to Downs v. Ross, where the contract was for wheat, thereafter to be threshed and delivered, and to Garbutt v. Watson, where the contract was with a miller, for flour, thereafter to be ground. It is said in many of the cases when this question has been considered, that the true test for determining whether the contract was one of sale or for work and labor, is to inquire whether the work to be performed, in order to prepare the property for delivery, was to be done for the vendor or the vendee. If for the former, the contract is one of sale, and void under the statute. According to the above cases, it must be quite obvious, I think, that the contract here under consideration, was one of sale, not one for work and labor. It was a simple contract for the sale of the colt, to be delivered at a future time, gelded and well, at the price of $1,000. The animal was present before the contracting parties, and was the precise property agreed to be delivered. True, an. operation was to be performed of great hazard, involving however little labor and trifling expense.- The plaintiffs assumed the expense and risk, for they were to deliver the colt gelded and well. It was the animal that was contracted for, not the incident of castration. The labor, expense and risk of the operation, were for the plaintiffs. The animal was the subject of the purchase and sale, to be gelded before delivery. The language of Bayley, J., in Smith v. Surman, well applies here; he says, the vendor, so long as he was felling it [the timber] and preparing it for delivery, was doing work for himself and not for the defendant ; ” and he adds, “ it was a contract for the future sale of the timber when it should be in a fit state for delivery.” There was not, certainly, any idea of manufacture involved in the agreement in this case; no idea of compensation for work and labor, as such. In no fair and just sense, can this contract be deemed one for work and labor; it was manifestly a contract of sale for the price of $1,000; and, not being in writing, was void by the statute of frauds.

The case was properly disposed of at the trial, and the defendant is entitled to judgment.

Miller, P. J., and Boardman, J., concurred.

Judgment ordered for the defendant, with costs. 
      
       2 R. S., 136, § 3.
     
      
       18 John., 58; 1 Strange, 506; 21 Pick., 205; 8 Cow., 215; 1 Met., 283; 28 Barb., 38; 51 id., 532, 576; 26 id., 138; 48 N. Y., 17; 19 Barb., 455; 4 Rob., 216; 26 Barb., 138; 28 id., 38; 62 id., 517.
     
      
      
         33 Barb., 202.
     
      
       1 N. Y. Sup. Ct. R., 3.
     
      
       5 Lansing, 243.
     
      
       4 Keyes, 180.
     
      
       23 Wend., 270.
     
      
       5 Barn. & Ald., 613.
     
      
       9 Barn. & Cress., 561.
     