Goddard v. Binney
| Decision Date | 04 September 1874 |
| Citation | 115 Mass. 450 |
| Parties | Thomas Goddard v. Henry P. Binney |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
[Syllabus Material] [Syllabus Material]
Suffolk. Contract to recover the price of a buggy built by the plaintiff for the defendant.
Trial in the Superior Court before Dewey, J., who reported the case for the consideration of this court in substance as follows:
The plaintiff, a carriage manufacturer in Boston, testified that the defendant came to his place of business in April, 1872 and directed the plaintiff to make for him a buggy, and the plaintiff entered the order in his order-book; the defendant gave directions that the color of the lining should be drab, and the outside seat of cane, and as to the painting, and also that the buggy was to have on it his monogram and initials. The sum of $ 675 was agreed as the price. It was to be done in or about four months. The plaintiff immediately began work upon the buggy and made every part, it being painted, lined, and with the initials, as ordered.
The last of August, when the buggy was nearly completed, wanting only the last coat of varnish, and the hanging of it on the wheels, the defendant came to the plaintiff's place of business and asked when it would be done. The plaintiff replied in about ten days, and asked the defendant if he might sell the buggy, or if he wished it, as he, the plaintiff, had opportunities of selling it to others. The defendant then inquired if the plaintiff could furnish him another if he sold that, to which he replied, he could not, as he was going to give up the business of manufacturing, and that unless he took this he could not have any. The defendant then said he would keep this one.
The defendant did not at this, nor at any other time, see the buggy. The buggy was finished September 15, in accordance with the original order. It is usual to keep carriages some time after they are finished to let the paint and varnish harden.
October 14, 1872, the plaintiff sent to the defendant the following bill:
The bill was presented by a clerk of the plaintiff. The defendant after looking at it, said he would see the plaintiff soon. The bill was in the plaintiff's handwriting and was kept by the defendant. The same clerk called again soon after and asked the defendant for a check, to which he replied that he would pay it soon, and would see the plaintiff. Calling a third time, before the fire of November 9th, the defendant said, "Tell Mr. Goddard I will come and see him right away." By the fire of November 9, 1872, this buggy and all the property on the plaintiff's premises were destroyed. After the fire the plaintiff again called on the defendant for payment. He wanted to know if it was insured, and said he would see the plaintiff about it.
After the buggy was finished, it was kept with the completed work on the plaintiff's premises; and it was at all times after it was finished till burned worth and could have been sold by the plaintiff for upwards of $ 700, the value of buggies of the plaintiff's manufacture having advanced after the contract was made in April.
The defendant put in no evidence, and contended that this action could not be maintained, that it came within the provisions of the Gen. Sts. c. 105, § 5, and that there had never been any delivery of the said buggy to the defendant, nor any acceptance thereof by him, and that the property belonged to and was at the sole risk of the plaintiff at the time of the fire, and that if any cause of action arose against the defendant for not taking away the said buggy, it arose prior to the fire, and no damage was caused to the plaintiff thereupon. The plaintiff contended that the contract did not come within the provision of the statute referred to, and that it was the duty of the defendant, upon being notified that the buggy was completed, to take the same away within a reasonable time, and that not having done so the buggy was at the risk of the defendant when burned.
The plaintiff further contended that upon the evidence the jury would be authorized to find that there had been a delivery of the buggy to the defendant, and an acceptance by him, and without submitting that question to the jury it was agreed by the parties, that if there was any evidence which could have properly been submitted to the jury as showing a delivery, and an acceptance of the buggy by the defendant, then it shall be taken that the jury would have found said delivery and acceptance.
Upon the evidence hereinbefore stated, the presiding judge directed a verdict for the defendant; and it was agreed that if the jury would have been authorized to find a delivery and an acceptance by the defendant, or if upon the facts above stated the court is of opinion that at the time of the fire the said buggy was on the premises of the plaintiff, at the risk of the defendant, the verdict is to be set aside, and judgment entered for $ 675 and interest, from October 15, 1872; otherwise, judgment on the verdict.
Verdict set aside, and Judgment entered for the plaintiff.
C. A. Welch, for the plaintiff.
G. Putnam, Jr., for the defendant. The contract between the plaintiff and defendant was not one for labor and materials, but was a contract, the result of which, when carried out, would be the change of property in the chattel from the plaintiff to the defendant, and therefore was a contract of sale within the statute of frauds. Benjamin on Sales, 79 & seq. Lee v. Griffin, 1 B. & S. 272. Atkinson v. Bell, 8 B. & C. 277. Moody v. Brown, 34 Me. 107. In the cases of Mixer v. Howarth, 21 Pick. 205, and Spencer v. Cone, 1 Met. 283, it was held that the statute of frauds does not apply to contracts for the manufacture of articles not in the usual course of the vendor's business; but this is on the ground that the statute does not apply to executory contracts, unless they relate to articles usually sold by the vendor. It has never been decided in Massachusetts that such contracts are for labor and material.
The case of Mixer v. Howarth rests on a supposed distinction which more recent criticism has shown not to be based on principle nor on a sound construction of the statute. Benjamin on Sales, 79. Lee v. Griffin, and Moody v. Brown, supra. It is noticeable that every case which has since arisen in the Commonwealth, except Spencer v. Cone, 1 Met. 283, which was decided the next year in a per curiam opinion, has been distinguished from it. Gardner v. Joy, 9 Met. 177. Lamb v. Crafts, 12 Met. 353. Waterman v. Meigs, 4 Cush. 497. Clark v. Nichols, 107 Mass. 547. If the decision of Mixer v. Howarth rests upon the distinction between articles which the plaintiff usually has for sale in the course of his business and articles which he manufactures expressly to order, then that decision is overruled in principle by the later case of Lamb v. Crafts, where the court says: "When a person stipulates for the future sale of articles, which he is habitually making, and which, at the time, are not made or finished, it is essentially a contract of sale, and not a contract for labor." In Mixer v. Howarth, as in this case, the article was manufactured in the course of the plaintiff's business, and consequently the transaction was a contract of sale, within the meaning of Lamb v. Crafts.
Whether an agreement like that described in this report should be considered as a contract for the sale of goods, within the meaning of the statute of frauds, or a contract for labor services and materials, and therefore not within that statute, is a question upon which there is a conflict of authority. According to a long course of decisions in New York, and in some other states of the Union, an agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered, (such as flour from wheat not yet ground, or nails to be made from iron in the...
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