The principle that a contract for the delivery at a future day of an article to be thereafter manufactured is not a contract for the sale of goods, within the statute of frauds, but for work and labor only, was adopted in this state in Bennett v. Hull, (10 John. 364,) and followed in Crookshank v. Burrell, (18 id. 58,) and also in Sewall v. Fitch, (8 Cowen, 215.) The latter case closely resembles the present. The action was upon a contract for the delivery of nails which were not on hand at the time of the contract, but were to be made thereafter; It was held that the case was not within the statute of frauds ; that the contract was one for work and labor, and not for the sale of goods. Upon the authority of that case the same principle was applied by the court in Robertson v. Vaughn, (5 Sand. S. C. R. 1,) a case also much like the one at bar. The soundness of the principle is questioned in the case last cited, and also in Downs v. Ross, (23 Wend. 270;) and Courtright v. Stewart, (19 Barb. 455;) but in each of the two latter cases it was properly held that the principle was inapplicable to the case. The reported decisions on the subject, in this state, are all one way, and it is probable that the doctrine of those decisions has been uniformly applied in practice. It may be the doctrine is erroneous ; but I will not, after the lapse of about half a century during which it has been allowed to stand, assume to be wise above what is written, and reject it as not law. If it is to be repudiated by the courts, the court of appeals should take the lead; but it more appropriately belongs to the legislature to prescribe a different rule, if the present one is not satisfactory, to govern future cases, without affecting past transactions.
A new trial must be granted, with costs to abide the event.
Johnson, T. B. Strong and Welles, Justices,]