#### William H. Parsons *et al.*plaintiffs and respondents, *vs.*Jacob Loucks *et al.*defendants and appellants.

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An agreement by manufacturers to commence the manufacture of a certain quantity of the article manufactured by them, for a purchaser, after the lapse of a specified time, such article to be of a certain description, and of such sizes and weights as the purchaser shall hy letter direct, and to deliver it so manufactured to him, at a place designated, -is not an agreement for the sale of goods within the statute of frauds, but is a contract for work and labor to be performed at a future day, and therefore need not be in writing.

(Before Robertson, Oh. J., and Barbour and Jokes, JJ.)

Heard June 12, 1866;

decided June 30, 1866.

Appeal from a judgment entered upon the report of a referee. The action was brought to recover damages for the non-delivery of a quantity of paper. The referee found, as matter of fact:

*First.*That in October, 1862, it was agreed between the plaintiffs and the defendants, as paper manufacturers, that the latter should manufacture and deliver to the plaintiffs, at the city of Hew York, ten tons, to wit, twenty thousand pounds of hook paper, similar to other paper, previously made hy them for the plaintiffs, as soon as they, (the defendants,) should finish certain other orders for paper, which they had on hand, which would take about three weeks, with a fair supply of water, to finish, and that the plaintiffs on such delivery should pay the defendants therefor thirteen cents a pound, less a discount of five per cent. That in about the middle of that month, (January, 1863,) the defendants stated to the plaintiffs, that they would not perform the said agreement, and refused to perform it, although requested by the plaintiffs, and the latter were at all times ready and willing to receive said paper and pay for the same, pursuant to the terms of the said agreement, hut the defendants have never delivered to the plaintiffs any part of such paper, but have refused so to do. That by reason of the breach of the said agreement, the plaintiffs have sustained damage to the amount of nineteen hundred and thirty dollars, as of the time when such breach *217occurred, being the difference between the contract price and the market price of such paper at the time of such breach, on twenty thousand pounds.

And as matter of law, the referee found that the plaintiffs ', were entitled to recover of the defendants, said sum of $1930, with interest thereon since the first day of January, 1863, that is to say, the sum of $2301.51, with costs.

From the judgment entered on the report, the defendants appealed.

*Aug. jF.*Smith, for the appellants.

*John F.*Parsons, for the respondents.

By the Court,

Barbour, J.

This action was brought to recover the damages claimed by the plaintiff, because of the non-delivery of a quantity of paper, which the defendants had agreed to furnish to them.

Upon the trial, before the referee, it was proved that a verbal agreement was made between the defendants, who were paper manufacturers in Maryland, and the plaintiffs, whereby the defendants undertook to commence the manufacture of ten tons of paper, for the plaintiffs, after three or four weeks from that time should have expired, and to make the same of a certain description, and of such sizes and weights as the plaintiffs should direct by letter, and deliver it to them in New York. The question before us is, simply, whether the agreement in .question is, or is not, within the statute of frauds.

This is a much stronger case for the party sustaining the negative of the proposition than was *Mead*v. *Case,*(33 Barb. 202,) where a marble monument, nearly, but not quite, finished, was to be completed and delivered to the defendant by the plaintiff, or *Robertson*v. *Vaughn,*(5 *Sandf.*1.) which was a contract to make and deliver one thousand molasses shocks and heads. For here, not only was the whole of the paper to be manufactured by the defendants, but such manu*218facture was not even to be commenced until after three or four weeks subsequent to the time the contract was entered into, nor until the sizes should have been furnished by the plaintiffs; {and it was to be made, too, not of such sizes and weights as the defendants might choose to manufacture for a general market, but of such specific sizes and weights as the plaintiffs should designate and direct. *J*I not only see no reason for overruling the decisions in the cases referred to, but it seems to me quite clear, independent of those precedents, that, as the object of this contract was not merely to make a purchase and sale of paper, but to" provide for the manufacture of a certain description of the article for the plaintiffs, such agreement was not within the statute.

The j udgment should be affirmed, with costs.

Eobebtson, Oh. J.

Possibly the right to prove by oral evidence an agreement to make, and deliver articles of merchandise when the vendor is to furnish the materials, may be productive of the same kind of evil as those intended to be remedied by the statute of frauds. But that statute has long received a construction in this state which confines it to the sale of existing goods, or of those upon which the vendor is not required to bestow any labor. Whatever may be the language of conflicting cases in England, it has been deemed necessary even there to extend its provisions by statute, expressly to the manufacture of goods. (9 *Geo.*4, *chap.*14.)

The English authorites cited in *Crookshank*v. *Burrell,*(18 *John.*58,) by Spencer, Ch. J. fully sustain the doctrine laid down in that case, that such a contract is not within the statute. That doctrine was thoroughly examined and deliberately sustained eight years afterwards in the samé court, in *Sewall*v. *Fitch,*(8 *Cowen,*215.) The subsequent case of *Downs*v. *Ross,*(23 *Wend.*270,) was a sale of existing articles, where nothing was to be done to them, except to put them in marketable condition. They were not to have their character changed, and the decision was put on that ground. This was followed by the case of *Seymour*v. *Davis,*(2 *Sandf.*239,) in this *219court. But when the doctrine laid down in *Sewall*v. *Fitch, (ubi sup.)*came before this court in *Robertson*v. *Vaughn, (5 Sandf.*1,) whatever dissatisfaction was expressed with it, the court deliberately yielded to the authority of that case. Numerous cases since decided sustain the same doctrine. *(Courtright*v. *Stewart,*19 *Barb.*455. *Donovan*v. *Wilson,*26 *id.*138. *Parker*v. *Schenck,*28 *id.*38. *Mead*v. *Case,*33 *id.*202.)

Some cases in Massachusetts seem partly to sustain the defendant’s views, *(Gardner v. Joy,*9 *Metc.*177; *Lamb*v. *Crafts,*12 *id.*353*;)*but I do not find any English cases that go that length. It would be somewhat a novel if not startling doctrine to decide that a tradesman must have every contract put in writing with his customers to manufacture articles in which he deals, such as articles of dress or furniture, in order to bind the latter to pay for them. At all events, it is better to adhere to established doctrines until reversed by an appellate court, or altered by the legislature.

I concur in affirming the judgment.