#### Crookshank *against*Burrell.

The statute sLfraeh! 44! *tóexeluüryZ*contracts^but tiucTiyappeJr that the vaiu¿ of the goods sold was above 25 dol-tars. to dehver,raat a fthingr dnot md“yeet"to“W¿ whhm is the is^a^contract for *work*and *labour*only, not for the sale and pur-

contralteTlo malte a wag-gon for the defendant by a certain day, and that he should come and pay for' it, in lambs, at a certain price per head ; this was held to be a contract for utork and labour, and so not within thft Statute.

IN ERROR, on *certiorari*to a Justice’s Court. *B.*de» dared against C. before the justice, on a contract between h‘m atld the defendant, whereby it was agreed that B. shodd make the wood work of a waggon, which the de-fendant was to pay for in lambs, at one dollar a head, The plaintiff claimed 25, dollars. The agreement was * 0 proved: and that the plaintiff had made ■ the waggon r . , . . ,. , T, , *, ,*within the period limited. It was also proved, that the defendant was to come for the waggon, and pay for it in lambs at one dollar a piece. The judgment was for 24 dollars and 94 cents, the plaintiff having remitted six cents ? and? ^ objections were, 1st. that the contract was w*[hin the statute of frauds ; 2nd. that the plaintiff ought to have tendered the waggon. 00

Spencer, Ch. J.

. . - delivered the opinion of the Court. It no where appears that the value of the waggon or the price of it, was ten pounds or upwards. The *59claimed to recover 25 dollars; but this does not denote the price of the waggon, and it is mere matter of form. But, admitting that the price agreed on was 25 dollars, still it would not be a case within the statute. In *Bennet*v. *Hull,*(10 *Johns. Rep.*364.) we decided, that the statute applied to *executory,*as well as other contracts, and we recognised the cases of *Rondeau v. Wyatt,*(2 *H. Bl.*63.) and *Cooper*v. *Elston, (7 Term*Rep. 14.) as containing a just and sound construction of the statute. In giving the opinions in those cases, the judges referred to the case of *Towers*v. *Osborn, (Str.*506.) with approbation. In that .case, the defendant bespoke a chariot, and after it was made for him, refused to take it; and *Pratt,*Ch. J. ruled, that it was not a case within the statute. In *Clayton*v. *Andrews,*(4 *Burr.*2101.) it was decided, that an agreement to deliver wheat, understood to be unthreshed, was not within the statute. The distinction taken by Lord *Loughborough*in *Rondeau*v. *Wyatt,*and by the judges, who gave opinions *seriatim,*in *Cooper*v. *Elston,*was between a contract for a thing existing *in solido,*and an agreement for a thing not yet made, to be delivered at a future day. The contract in the latter case, they considered not to be a contract for the sale and purchase of goods; but, a contract for work and labour merely. However refined this distinction may be, it is well settled, and it is now too late to question it.

It appears that the defendant was to come after the waggon, and that it was completed at the time agreed upon. It is necessarily to be inferred, that when he came for the waggon, he was to pay for it, in the mode agreed upon, and, of course, he was to drive his lambs to the plaintiff. We are of opinion that the judgment must be affirmed.

Judgment affirmed»