dissenting.
In determining whether the instructions of the Judge to the jury were or were not correct, it must be considered as proved, that the defendants, by their agent or agents, duly authorized, in the month of June, 1855, agreed with the plaintiff, to take all the wood he would put on the line of their road that season, at the same price they had paid him before for wood, and more, if the wood was better; and that, in September, 1855, the plaintiff had cut and hauled, and then had over two hundred cords on the line of the road, hauled according to thewgreement made with Mr. Corser, in June; hard and soft wood together, better, in the opinion of the plaintiff, as a whole, than the lot put on and sold by him to the defendants the winter before; and that the plaintiff gave notice to Mr. Corser of the fact, and, at the same time, remarked to him that he wanted his wood measured up, as he wanted his money; that Mr. Corser made no objection to the quantity, quality, time or place of depositing the wood, but, on the contrary, said to the plaintiff, that they would send Mr. Hodgkins, of Poland, to measure it. Subsequently, in October, 1855, the plaintiff saw Mr. Corser again, at Bethel, and he told the plaintiff, he would have the wood measured up in a few days, as soon as they had measured some they had bargained for with Mr. Chapman ; that there was no misrepresentation or deception on the part of the plaintiff; that he had fully and honestly done all he could do or was bound to do by the terms of the agreement ; that, while he was performing on his part, no intimation was made to him, by the defendants, that they should not receive and pay for the wood; and that, after full performance on his part, Mr. Corser twice agreed with him, in September and October, to send a surveyor and have the wood measured. It seems to me that this was a contract executed. Performance on the part of the plaintiff, and ratification or acceptance on the part of the defendants, by their duly authorized agent, “ after they had the means of exercising their right of rejection.” The quantity was uncertain and to be ascer*383tained by admeasurement, to be made by the defendants. The price depended on the quality. Id certum est, &c.
If, by reason of the statute of frauds, the plaintiff cannot recover upon this state of facts, it should be regarded as a statute to promote, rather than to prevent, frauds. If it was not a contract executed and ratified, it was an agreement entered into to be performed within one year, and not a contract of sale.
“When the contract is a contract of sale, either of an article then existing, or of articles which the vendor usually has for sale in the course of his business, the statute applies to the contract, as well where it is to be executed at a future time, as where it is to be executed immediately.” “ But where it is an agreement with a workman to put materials together and construct an article for the employer, whether at an agreed price or not, though in common parlance it may be called a purchase and sale of the article to be completed in futuro, it is not a sale until an actual or constructive delivery and acceptance ;■ and the remedy for not accepting is on the agreement.” 21 Pick., 207. And why? Because one party may, otherwise, be greatly injured by the fault of the other. He cannot be left in statu quo.
He has made sacrifices and incurred expenses, which he would not have made but for the agreement. Men are bound to act in good faith. They are not at liberty to deceive and injure each other, with impunity.
A man may be as essentially injured by cutting and hauling his wood, under an agreement, and then not having it received and paid for, as by manufacturing a carriage, or any other article, under an agreement, and then not having it received and paid for. Where the reason is the same the law is the same. Where ¿he contract is for “ an article which the vendor usually has jor sale in the course of his business,” it may well be otherwise; as in the case of candles or tallow. They may be kept without deterioration, or readily find another market. But wood, in large quantities, in the country, can only find a ready market at or near the railroads; and its de*384terioration, when exposed to the weather, is rapid. No prudent man would cut his growing wood, in the country, in large quantities, without knowing when and where he could find a market for it. If the plaintiff has been deceived and injured by the defendants, they should not be allowed to take advantage of their own wrong. The statute should have a reasonable construction.
In Irvine v. Stone, 6 Cush., 508, cited by counsel for the defendants, the cargo of coal was to be delivered in Boston, by the terms of the agreement. The defendants countermanded the order for the coal, before its arrival in Boston, and positively declined receiving it.
In Mining Co. v. Glass Co., 9 Cush., 116, the coal was not consigned to the party ordering it, but, on the contrary, was consigned to the plaintiff’s own agent. There was an attempt to prove a usage, “ that when coal ordered is delivered on board a vessel consigned to the party ordering it, that is a compliance with the order, and the coal is thereafter at the risk of the party ordering it. But the facts did not bring the case within the usage as proved. The court say, “ the bill of lading gave the defendants ho right to, or control over the coal, and when indorsed and offered to the defendants’ agent, was promptly rejected.” They also say, “ when orders have been received and executed, and delivery has been made to the master of the ship, and bills of lading signed and forwarded, the seller is functus officio, and can do nothing more, except so far as he may have a right of stoppage in transitu.”
In Maxwell v. Brown, 39 Maine, 98, the coal was to be delivered at Portland, the vessel .in which it was shipped was wrecked, and the coal never arrived at Portland. The defendant was to pay freight, but designated no vessel by which it should be sent. “ The coal was shipped by the plaintiffs on board a vessel chartered by them, and consigned to the' defendant, and "the master signed a bill of lading in the usual form, engaging to deliver the coal to the defendant upon his paying the freight.”
*385In Sewall v. Fitch, 8 Cowen, 219, the Court say, “formerly the King’s bench held that the statute did not apply to executory contracts.” (Towers v. Osborne, 1 Stra., 506; Clayton v. Andrews, 4 Burr., 2101.) In neither of those cases, however, was it necessary to rely upon such a principle. The first was for a coach, to be made; and the second for grain, to be yet threshed. So that those cases were rightly determined, upon a wrong principle, as has since been held, both by the Common Pleas and King’s Bench. In Randeau v. Wyatt, (2 H. Bl., 63,) Lord Loughborough said, the case of Towers v. Osborne “ was plainly out of the statutes, not because it was an executory contract, as it has been said, but because it was for work and labor to be done, and materials and other necessary things to be found, which is different from a mere contract of sale, to which species of contract alone the statute is applicable.” The same point was decided in Cooper v. Elston, (7 T. R., 14,) where the King’s Bench adopt Randeau v. Wyatt, “ as sound law, admitting the distinction there taken.” See also Bennett v. Hull, 10 Johns., 364, and Crookshank v. Burrell, 18 Johns., 58.
It does not appear by the facts stated, whether the wood furnished by the- plaintiff was deposited by him on his own land, or the land of the defendants, or on that of a stranger. But it does appear to have been deposited on the line of the road, according to the agreement, and at the place or places where the defendants agreed to receive it. It may not appear that the wood to be furnished was in growing trees, at the time the agreement was made, but it may be fairly inferred that such was the fact. It was to be as good as the wood which had been furnished by the plaintiff before. It might be better. It was uncertain. And the price was also uncertain. How can this be regarded as a contract of sale, till the wood was cut, hauled and delivered! When cut, hauled and delivered, the law would imply a promise to pay so much as it was worth, without proof of any previous agreement. Upon proof that it was as good as the sample, the plaintiff would be entitled to the same price the defendants had paid him be*386fore; upon proof that it was worth more, or better, the plaintiff would be entitled to recover more. In my opinion, the exceptions should be overruled, and there should be judgment on the verdict.