The opinion of the Court was drawn up by'
Kent, J.The presiding Judge instructed the jury, that “ if the facts were as stated by plaintiff, the case was not within the statute of frauds.” The facts, as stated by plaintiff, are, that the agent of the defendants said to him: that they, (the defendants,) would take all the wood he would put on the line of the road that season at the same price they had paid him before for wood, or more, if the wood was better.”
The first count' in the Writ is for not accepting the wood put on the line of the railroad.
Was the ruling of the Court on this point correct ?' This depends upon the decision of the question — was this “acontract for the sale of goods, wares or merchandize,” within the meaning of the statute of frauds ? R. S., C. Ill, § 5.
It was a contract to be executed in the future; but it has been often decided that executory contracts of sale are within the statute. Hight v. Ripley, 19 Maine, 137.
A distinction has been made between contracts for the sale of goods, and agreements to furnish articles to be manufactured in a particular manner by the party contracting. The latter class are held not to be within the statute. Abbot v. Gilchrist, 38 Maine, 260.
The fact, that the article contracted for does not exist at the time of the contract, but is to be made or manufactured, will not, necessarily, take the case out of the statute. It must also appear that the particular person, who. is to manufacture it, or the mode and manner, or materials, enter into and make part of the contract. Hight v. Ripley, 19 Maine, 137; Fickett v. Swift, 41 Maine, 68.
If a man agrees to purchase one hundred boxes Of candles at a fixed price, although both parties understand that the candles are not then manufactured, but are to be thereafter, yet this is essentially a contract of sale. The fact that they are to be afterwards manufactured makes no part of the con*381tract. But if the bargain had been that the party should manufacture the candles from a particular lot of tallow, or that they should be manufactured by a particular person, it would be an agreement for manufacture, and not for sale. Gardner v. Joy, 9 Met., 177; Lamb v. Crafts, 12 Met., 353.
A test, in some cases, is whether the person, contracting to take the article, is bound to receive one which may be bought or procured by the other party after the contract. If he is, then it is a case of sale.
In the case before us, there was no agreement for any particular wood; no stipulation that it was to bo cut from plaintiff’s land, and no limitation of time when it should be cut. The contract might be fulfilled by the delivery of wood already cut or bought of another person. There was no element in the bargain which implied a “ manufacturef of an article, within the most liberal definition of that word. It was very clearly a case of sale within the statute. Winterman v. Meigs, 4 Cush., 499.
Was there any acceptance of the wood, within the other clause of the same statute ?
The language of the statute, on this point, requires that there should be an acceptance, as well as delivery. There must be not merely the act of delivery, but there must be such an acceptance by the vendee as vests the property, so that he can take no exceptions to the quantity or quality. Maxwell v. Brown, 39 Maine, 98.
In this case, by the testimony of the • plaintiff, there had been no acceptance. He says, that, “of course, it was to be measured and inspected in the Spring, and always was.” There was no evidence that any agent of defendants had accepted the wood, or done any act from which an acceptance could be inferred.
The case, on both points, is within the statute, and the ruling of the Judge on this point was erroneous.
Exceptions sustained. — New trial granted,
Tenney, C. J., Appleton, Cutting and Davis, JJ., concurred.