#### Hardell, Plaintiff in Error, *vs.*McClure and Williams, Defendants in Error.

The English Statuto of frauds, and of which ours contains tho substance, has been variously adjudged, botlnin England and in this country in its application to contracts to bo performed *in futuro,*whore no note or memorandum was made, or any consideration paid the parties to performance. But tho most fruitful source of litigation has arisen upon contracts having this aspect where something was required to bo done, by tho way of manufacturing tho thing agreed to bo sold, or of doing any other act, to fit it for delivery to the purchaser. Tlio Courts of England, and the current of decisions in this country have taken tho same direction, and aro pretty uniform in holding that cases standing in tho condition last mentioned, are not embraced vyithin tho Statute, and that the common-law principle must govern.

But inasmuch as this Court is untrammelled by decisions of its own, or bound by tho precedents of other Courts, it deems it most wise to adopt tho Statuto of England of 9th Goo. IV. which declares that all goods of a *certain*value, or upwards, contracted to bo solj.l; where anything remains to be done to fi,t them for delivery, falls within the Statute, and cannot be enforced unless in writing, or upon some consideration paid.

Interposing this declaratory Statute as tho rule of decision of this Court in casos falling withjn it, is regarded as tho host policy for tho prevention of litigation and the establishment of business relations upon a stable foundation.

Error to the Milwaukee Circuit.

This was an action of assumpsit to recover damages for the non-performance of a verbal contract for the sale and delivery of a quantity of wheat, *by the*defendant below, to the plaintiffs below. The defendant • was by the agreement to deliver to the plaintiffs the wheat in question at the- Prairieville Mills,. At the *272time of making the contract it was also agreed that the parties should meet the next day and reduce the contract to writing; but the plaintiffs did not appear at the time appointed, and it was *never*reduced to writing, and no part of the purchase money was at any time paid, nor any part of the wheat delivered.

On the trial in the Court below, the plaintiffs proved that at the time of making the contract, a part of the Wheat agreed to be sold was not threshed, and on the part pf the defendant it was proved that all the wheat he had at the time of making the contract was threshed.

On the committing the cause to the jury, the counsel for the defendant requested the Court to charge the jury as a mallei of law»

1st; That the wheat existing *in solido*at the time the bontratit Was made, and not having to be raised or manufactured, and though unthreshed *it*was a *contract*within the Statute of frauds, and the plaintiffs could not recover*

2d, That if in the agreement it was understood that the contract should be reduced to writing the next day, and if the plaintiffs did not attend, as agreed, to reduce it to writing, and the same was never so done, that then the contemplated contract was never concluded or 'completed, so as to give it effect, and could not be enforced in law.

Which instructions the Judge refused to give, but did instruct the jury that incase, by the negotiation, the contract was not to be complete until it should have been reduced to writing, then and in that case there was no contract at all, until reduced to writing. But that a contract may have been made and completed, although at *273the time there was an agreement to reduce it to tvriting; that a failure to reduce it to writing, would not avoid the verbal agreement already made, and that it was for the jury to say, whether the agreement was Completed or !not, without being reduced to writing.

• To this charge and instruction the counsel of the defendant excepted.

The jury found a verdict for damages against the defend-., ant below, and the cause comes here, in error upon the exceptions taken to the instructions of the Judge to the jury on the trial below.

*JD. A.*J. *Upham*for Plaintiff in Errofs

*J. Holliday*for Defendants in Errors

On the part of the plaintiff in error it was insisted^ that* inasmuch as the wheat in question at the time the assumed contract was made existed *in solido*and was not yet to be produced or created, and though then unthresfo cd, that unless some consideration was paid* or other act done by way of consideration, it fell within the Statute of frauds* and the suit could not be maintained. To this point the counsel cited *Garbut vs. Watson, 5 Bar.*& *Aid. Rep.-,*6123 *Atkinson vs. Bell,*8 *Bar.*& *Cress. Rep., 277; Watts vs. Friend,*10 *do.,*442; *Smith vs. Surnam,*9 *do.,*549; *Powers vs. Ross,*23 *Wendell, 271.*

It was also claimed and insisted that the contract, until reduced to writing, had no such perfection as to maintain a suit thereon for recovery of damages. And that the charge of the Judge, and the instructions given by him to the jury were erroneous.

On the part of the defendants in error (the plaintiffs be" *274low) it. was .insisted .that, the Statute requiring a memorr andum in writing to be made of, goods sold above $25 in value, meant goods *in*solido* and.that it .extended to both contracts executed and executory .for the sale,of property; thus situated. And to this point was cited 8 *Cowen’sl Rep..,*215;' 4 *Burroughs Rep.,*210.1;, 6 *Strange,*506; 8 *John, Rep.,*58. . .

It was also, contended that where, by the terms of the contract the thing sold,. or;.agreed¡to be, sold,.required *to*he .manufactured, or labor bestowed upon it in order to be fitted for delivery, it did not fall within the Statute of frauds, or require to be made in writing. 21 *Pickering,*205; 7 *Term Rep.,*14; 1 *Strange,*506; 1-0 *Johnson’s R.,*364.

*By the Court.*

Hubbell J.

This case turns upon the construction which this Court gives to the Statute of frauds. The act of 29 Charles II; though passed near two centuries ago, and long since adopted’ in most of the States of this Union, unfortunately remains yet a subject of’Litigation and of doubt, at least in the United States.

The 11th Section of the English act is as follows: — ■

> *And*be it enacted that after the said four and twentieth day of June (1677) no contract for the sale of any goods; wares or merchandize, for the price of £10 or upwards; shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same) of something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged with'such contract, or their agents thereunto.... lawfully authorized.”

*275The 3d' Section of the Statute of frauds of this State is in substance the same. “ Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void unless:

1st. A note or memorandum of such contract be made in writing and subscribed by the parties to be charged therewith: or

2d. Unless the buyer shall accept and receive parted such goods, or the evidences, or some of them, of■ such things in action: or

3d. Unless the buyer shall at any time, pay some part of the purchase money. *Stat. Wis., p.*163.

These acts hayp never received a judicial‘'construction in the Supreme Court of Wisconsin. The question therefore remains to some extent open, and by its importance invites a careful scrutiny and a liberal and sound determi-, nation.

The case below was decided upon the weight and authority which had ruled in the Courts of England, from *Towers vs. Osborne,*in 1724, to *Garbutt vs. Watson*in 1822; and in the American Courts from *Eichenberger vs. McCauley,*decided in Maryland, in 1766, to *Downs vs. Ross,*decided in New York in 1840. For that long period, embracing the palmy days of the Courts of both countries, there seemed to be-,-, if not an established construction, at least, a concurrence in the principles upon ■ which decisions rested, whatever might be the diversity in *cases*arising in practice. _ The Courts seemed dispQsed, for.reasons perhaps more-nice than wise, to give the Statute a strict construction, and not to hold any case within it, unless the property which was the subject of sale, was in a shape or .condition .for delivery, at the tima’. *276of the making of the contract. Hence ali contracts for a sale of property which had to be changed in form, or upon which work and labor had to be bestowed by the vendor to prepare it for the acceptance of the vendee, were treated as contracts for *work and*labor,. and held not within the Statute.

*Towers*vs. *Osborne, 1 Strange 506,*was the first and leading case in England on this subject. This was a contract for a chariot, which was to be made and delivered at a future day; and Chief Justice Pratt ruled it not within the Statute.

The next case was *Clayton*vs. *Andrews*4 Burr, 2101, which was a contract for wheat then unthreshed. Lord Mansfield here approved the principle decided in *Towers*vs. *Osborne,*and held the contract for wheat not within; the Statute upon the same principle, but assigned as a reason, that it was a contract to be performed *in futuro.*

In *Rondeau*vs. *Wyatt,*2 *Hen, Blackstone,*decided in 1792, the Court disapproved of the reason assigned by Lord Mansfield, and held that a contract to deliver goods at a future day, was within the Statute, and that the mere- fact that a contract was *executory,*did not save it from the Statute. In this case, however,, though the reason assigned by Lord Mansfield, in *Clayton*vs. Andrews, was held erroneous, his Lordship’s decision was reviewed and sustained, upon the principle that the contract embraced work and labor.

*Groves*vs. *Buck,*(3 *Maule and Sel.,*178), followed in 1814, wherein the Court of King’s Bench re-affirmed the former decisions, and held that a contract to deliver oak pins, which were then in the slab, and had to be cut out before delivery, was not within the Statute.

*277In the State of Maryland, as early as 1766, in *Eichenberger*vs. *McCauley,*(5 *Har, and John.*213), Mr. Justice Yates held that a contract to deliver wheat, then unthresh-ed, was not within the Statute; herein anticipating by one year, the ruling of Lord Mansfield, on a precisely similar contract, in England.

The same doctrine was adopted by the Courts of New York. In *Cruikshank*vs. *Burrell,*18 *Johnson's, R.*58, Chief Justice Spencer reviews the English cases, and upon their authority, holds a contract for a wagon, not yet made, not within the Statute. The same Court, in *Sewall*vs. *Fitch,*8 *Cowen,*215, held a contract for nails, which had to be cut out of the iron before delivery, without the Statute. And in *Bennett*vs. *Hull,*10 *Johnson’s R.,*364, and *Jackson*vs. *Covert,*5 *Wend.,*139, the principle of *Clayton*vs. *Andrews*was considered and approved, though in these cases, the contracts being for the mere delivery of articles at a future day, and no labor to be performed to prepare them for delivery, the contracts were held not within the Statute. The same principle was asserted by the learned Court of Massachusetts, in *Mixer*vs. *Haworth, in*21 *Pickering,*where the purchase of a buggy-waggon, which was, at the time, nearly completed, but required lining and some trifling additions, was held not within the Statute, on the strength of the English cases. 4

So far, had the law on this important subject been settled, during a period of a century and a half, when the Court of King’s Bench, in *Garbutt vs. Watson,*(5 *Barn. and Ald.,*613), asserted the doctrine that all contracts •were within the scope and intent of the Statute, where the result of the bargain was a sale and transfer of chattels. That was a contract for flour, which had to be manufac*278tured or ground from the. gram, before delivery. The principle of the. past cases was fully discussed and considered, and the-decisions of Chief Justice Abbott, Lord Mansfield, and Lord Ellenborough were, by a full bench, overruled. *Atkinson*vs. *Bell,*(8 *Barn. and Cress.,*277,) followed in 1828, and *Smith*vs. *Surnam,*(9 *B. and C.,)*in 1829, both adopting the new construction, and in similar cases.

- In the State of New *York*— Downs *vs. Ross,*23 *Wend.,*271 — was decided in 1840, which was a contract for the delivery of wheat, *unlhreshed*at the time; and a majority’ of the Court, -in a powerful argument by Bronson, Justice, sustained the new English doctrine; while Mr. Justice Cowen, with bis usual learning and ability, dissented, holding that the weight of authority should govern. No-other Courts of the United States, are known to have departed from the original ground. In England, the conflict between the older and more recent decisions was settled in 1830, by the Statute of 9th Geo. IV., which en- • acts *Caput*14, *Sec.*71,) that “ the provisions of the Statute of frauds, shall extend to all contracts for the sale of goods to the value of £10 or upwards, *notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of such contract, be actually made, procured or provided, or fit or ready far delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery*

OThus, this vexed question is set at rest in England. In this country, without further statutory provisions, it is impossible to foresee how the majority of Courts will incline. Q Looking to the intent of the law, which was declared, in the preamble, to be “ for the prevention of frauds and perjuries,” and construing its provisions by the *279well known meaning of the language employed, it must *\*be admitted that the earlier decisions confine it to a nar- ! row and technical scope. If the policy of the act was not > wholly misconceived, the Courts were bound to give it a *\*fair and "liberal construction; anil for this feáson, it'seems *\*to us that the -rule -of *Garbut vs.*Watson, should have | been adopted in the first instance; and although in f England, it -has been 'deemed necessary to untram- . | mel the Bench 'from the binding 'force of precedents of *long*standing ahd high authority, by á solemn * act of Parliament; yet, in this young State, where the Í question is presented somewhat as a case of first impress- ij ions, this Court is at liberty to adopt the rule which seems I most in accordance with reason and sound public policy, j We are all inclined to the opinion that the decision of the *\*Court below, in the present case, had the better authority, ^ but not the betterreason, on its side; and we all believe we 1 shall establish a more intelligible rule, better consult pub- i< iic policy, and more correctly expound and apply the law ¡ itself, by reversing that decision and adopting the rule of the English Statute, than by attempting to enforce the earlier decisions. ^We regard the act of 9th Géo., IV, > as laying down no new principle, covering no new ground'; ] but as containing in remarkably clear, simple and explicit" ¡ language, the true construction of the original actl^ We | desire to adopt that language as the construction which this Court will .give to the 3d section of the Statute of frauds of this State.0-We deem it far more important ’ that a general Statute of .pervading application to business transactions, should be clearly defined and well understood, than that any series of decisions, however an-eient or respectable, should be abirtrarily pursued.

The .judgment of Court below is reversed with costs.