The defendant appeals from an interlocutory judgment overruling a demurrer by the defendant to the plaintiff’s complaint, on the ground that it does not state facts sufficient to constitute a cause of action. A reading of the complaint shows clearly that it is an action for work, labor and services, and not for a sale of goods as claimed by the defendant. Where a chattel is in existence at the time the contract is made and the vendor is to do some work upon it to adapt it to the uses of the vendee, such contract is a sale. But the complaint in the case at bar alleges that the plaintiff “ made ” for the defendant “ clothes and _ coats.” Clearly these chattels were not in existence, but were to be *279made by the plaintiff; and, therefore, the contract does not fall within the rule above stated. It may also be said that there is no evidence that even the material out of which the clothes and coats were to'he made was in existence.
Judgment overruling demurrer affirmed^ with costs, with leave to defendant to plead upon payment of the costs in the court below and in this court within five days.
Giegerich and Ford, JJ., concur.
Judgment affirmed, with costs, with leave to defendant to plead upon payment of costs in court below and this court within five days.