Although the defendant was wholly unjustified in refusing to accept delivery, nevertheless it seems to me the judgment for the plaintiffs cannot be sustained.
The action is brought to recover the market value of belting made especially for the defendant in compliance with its order. Confessedly, the belting was not manufactured by the plaintiffs, who were not engaged in the business of manufacturing, but by another manufacturing concern, not disclosed to defendant, to which they gave orders for the supplying and making of such belting as they might obtain orders and purchasers for. If the plaintiffs themselves had been the manufacturers the order which the defendant gave for the making of the belt in controversy would have been a simple order for work and labor, because the belt was not in existence, and of necessity had to be made especially to fit the defendant’s machinery. Notwithstanding the fact the belt had to be especially made, the plaintiffs not being the manufacturers, the transaction had between them and the defendant was one of simple bargain and sale of personal property of more than fifty dollars in value, and, therefore, came within the provisions of the Statute of Frauds requiring a note or memorandum in writing. (Pers. Prop. Law, § 31.) Contracts for the delivery of goods to be manufactured are contracts for the sale of goods, wares and merchandise within the Statute of Frauds unless the goods are to be manufactured by the vendors themselves. (Millar v. Fitzgibbons, 9 Daly, 505; Joy v. Sehloss, 12 id. 533; Courtright v. Stewart, 19 Barb. 455; Juilliard v. Trokie, 139 App. Div. 530; Pitkin v. Noyes, 48 N. H. 294; 3 Pars. Cont. [7th ed.] 60.) The principle upon which a contract to sell an article not in existence, and which is to be manufactured by the seller is considered not to come within the Statute of Frauds, is that the parties have so blended the contract of sale with one for work and labor that it no longer remains one of sale only to which alone the statute applies. This element of work and labor is lacking where one simply agrees to furnish and sell an article which he procures to be manufactured by whomsoever he chooses, and the transaction amounts only to a simple sale.
*358The plaintiffs cannot recover, therefore, unless the signed letter which the defendant wrote to them on the 29th day of December, 1909, is a sufficient memorandum to satisfy the Statute of Frauds. So far as material that letter reads as follows: “ Referring to our order with you for belting, would say you will please make and send to us one belt, distance between centers 39 ft. 6 in. Pulley diameters 28 and 30 inches.”
Immediately on receipt of this letter it was observed by the plaintiffs that the width of the belt was not mentioned. In addition to this omission no price is stated.
While the memorandum required by the Statute of Frauds may be quite informal and may be composed of several written communications relating to each other, signed by the party to be charged, all the essential parts of the agreement must be contained in the writings, and they cannot be supplied by oral evidence. (Stone v. Browning, 68 N. Y. 598; Waxelbaum v. Schloss, 131 App. Div. 826.) The price to be paid or some stipulated means of fixing it is an essential element of such a memorandum. (Lambert v. Hays, 136 App. Div. 514; United Press v. New York Press Co., 164 N. Y. 406. Inman v. Burt Co., 124 App. Div. 13.)
■ The defendant claims not to have understood that the plaintiffs were to manufacture the belt' or that it was to be manufactured by any particular concern, or at all, except to be spliced together at the required length. If it was to be manufactured by plaintiffs themsélves the defendant would have been obliged to pay therefor irrespective of any written agreement, because its order would have been a direction to perform work and labor and not within the statute. Whatever defendant may have understood as to the manufacture, it appeared on the trial that the transaction was a mere bargain and sale of personal property of over fifty dolíais in value, and it then had the right to insist that there was no binding contract compelling it to accept delivery even though proper tender was made.
It is true that the record shows .that no oral agreement as to price was had, and it might seem that there could properly be read into the memorandum an implied agreement to pay the fair value of the belting. But such doctrine was discussed *359and repudiated by Judge Gray in United Press v. New York Press Co. (supra), wherein he points out that such holding in Hoadly v. M’Laine (10 Bing. 482) was not necessary to the decision because the goods were to be fabricated by the vendor.
The other letters written by the defendant do not aid the memorandum above quoted, and those written by the plaintiffs have no bearing because they are not signed by the defendant, the party to be charged.
For those reasons, I think, the judgment should be reversed, and as there is no possibility of the plaintiffs making a different case upon another trial, the complaint should be dismissed, with costs.
Judgment affirmed, with costs.