Phipps v. McFarlane

• Citation: 3 Minn. 61
• Parties: GEORGE W. PHIPPS vs. WILLIAM K. McFARLANE.
• Decision Date: 01 January 1859
• Court: Supreme Court of Minnesota (US)

3 Minn. 61

(3 Minn. R. p. 109.)

GEORGE W. PHIPPSvs.

WILLIAM K. McFARLANE.

Supreme Court of Minnesota.

Appeal from an order of the district court, Hennepin County.

The appellant brings the action upon a verbal contract, by which plaintiff agreed, for a consideration named, "to furnish material for, and prepare and fit the same for putting up at the steam saw mill of Pomeroy, Bates & Co., Minneapolis, four houses, known as the Fitzgerald Patent Portable Houses." The plaintiff had a verdict, and a new trial was ordered. From the order granting it this appeal is brought.

Points and authorities for appellant: —

The court below erred in granting a new trial in this action because — The contract declared on and proved is not a contract for the sale of goods amounting to over fifty dollars in value, and, therefore, within the statute of frauds and void, as assumed by the court below, but is in fact a contract for work and labor, and therefore without the statute and valid. 21 Pick. 205; 20 Conn. 38; 1 Met. 283; 19 Maine, 137; 8 Cow. 215; 5 Sandf. 1; 18 Johns. 58; 10 Barb. 406; 8 N. Y. 182; 19 Barb. 455; 2 Parsons on Cont. 334, note f.

The respondent's points and authorities are not on file.

Cornell & Vanderburgh, for appellant.

Henry Hill, for respondent.

ATWATER, J.

The only question properly presented in this case for the consideration of the court is, whether the contract set forth in the complaint is within the statute of frauds and void. The rule seems to be well established by which it is determined whether a particular contract comes within the provisions of the statute of frauds — the principal difficulty that exists on the subject, being the application of the rule to the various shades of contracts upon which the adjudication of courts is required. Parsons, in his work on contracts (2d vol. p. 344), states the principle thus: "A contract for an article not now the seller's, or not existing, and which must therefore be bought or manufactured before it can be delivered, will also be within the statute, if it may be procured by the seller by purchase from any one, or manufactured by himself, at his choice, the bargain being in substance, as well as form, only that the seller shall, on a certain day, deliver certain articles to the buyer for a certain price. But if the contract states or implies that the thing is to be made by the seller, and also blends together the price of the thing and compensation for work, labor, skill, and material, so that they cannot be discriminated, it is not a contract of purchase and sale, but a contract of hiring and service, or a bargain by which one party undertakes to labor in a certain way for the other party, who is thereupon to pay him certain compensation; and this contract is, therefore, not within the statute."

Story upon this subject simply says, that "executory contracts for the delivery of goods, after they shall be manufactured, or after certain work and labor shall be expended upon them, are not within the statute." Story on Cont. § 787. Bronson, J., in Downs v. Ross, 23 Wend. 270, says, that "if the thing sold exists, at the time, in solido, the mere fact that something remains to be done to put it in a marketable condition, will not take the contract out of the operation of the statute." From which the inference is clear, that if the thing sold does not exist in solido, and labor be performed upon it, the contract is not within the statute. Still another test is given by Judge Harris, in Courtright v. Stewart, 19 Barb. 455, who says, "the true criterion for determining whether a contract is for the sale of goods, and therefore within the statute of frauds, or for work and labor and materials, and so not within the statute, is to inquire whether the work and labor required, in order to prepare the subject matter of the contract for delivery, is to be done for the vendor or the vendee." However correct this rule may be in the abstract, it cannot prove of any great practical value, inasmuch as it must be usually difficult of application, as the questions generally arising under this statute originate in contracts so obscure in their terms, that it is difficult to determine for whom the parties intended the work should be performed.

Tested by these rules, does the contract in the case at bar, come within the provisions of the statute of frauds? Upon a careful examination of the terms of the contract, as stated in the pleadings, and the authorities in analogous cases, I am constrained to hold that it does not. From the language used by the parties, it would appear that their intention was rather that the plaintiff should perform certain labor for the defendant, than sell him goods. It will be observed that none of the terms ordinarily employed in contracts of bargain and sale are used. It does not appear that the plaintiff agreed to "sell" and "deliver" the materials or houses mentioned, nor that the defendant agreed to "purchase" the same. Had a simple sale of the goods been intended, it is reasonable to suppose that the parties would have used the apt and ordinary language to express that intent. But "the plaintiff agreed to furnish material for, and prepare and fit the same for putting up at the steam mill of Pomeroy, Bates & Co., in Minneapolis, four houses, known and designated as the Fitzgerald Patent Portable Houses," of certain specified dimensions, at a...