By the Court,
Mullin, J.If the contract set out in the complaint in this case is void by the statute of frauds, it is by virtue of that clause of it relating to the sale of goods, wares and merchandise, and which requires a memorandum in writing, unless there is delivery and acceptance, or earnest paid. It was decided in Clayton v. Andrews, (4 Burr. 2101,) that an agreement to sell and deliver to the plaintiff one load and a half of wheat within three or four weeks, to be paid for on delivery, was valid. The wheat was understood by the parties to be unthreshed, and it was held the agreement was not within the statute. That was an executory agreement, and the statute applied only to executed contracts. The court refer to Towners v. Osborn, (1 Strange, 506,) as decisive of the question. This was the rule as it was adopted by the courts of this State.
The English courts have repudiated the doctrine of Qlayton v. Andrews ; holding that executory as well as executed contracts are within the statute. (2 H. Black. 63.) But did not entirely repudiate the principle of the decision, so far as it held that contracts were not within the statute when work and labor was to be bestowed on the property sold in order to put it in a condition to satisfy the contract. There was a want of harmony in the English cases on this subject, which was got rid of by Lord Tenterden’s act, as it was called. (9 Geo. 4th, ch. 14, § 7.) That act provided that it should extend to all contracts for the sale of goods of the value of ¿£10 sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of such contract, be actually made, procured or provided, or fit or ready for delivery, *528or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. The English eases since this statute are, of course, no authority with us, and we must look to our cases for authoritative constructions of the provisions of the statute under consideration.
Parsons, in his excellent work on Contracts, (vol. 2, p. 334,) draws from the English as well as the American cases, the following rules: 1st. That a pure executory contract for the sale of goods, &c., is as much within the statute as a contract of present sale. 2d. A contract for an article not now the seller’s, or not existing, and which must therefore be bought before it can be delivered, will also be within the statute if it may be procured by the seller by purchase from any one, or manufactured by himself at his choice, the bargain being in substance as well as form, only that the seller shall, on a certain day, deliver certain articles. 3d. But if the contract states or implies that the thing is to be made by the seller, and also blends together the price of the thing, and compensation for work, labor, skill or material, so that they cannot be discriminated, it is not a contract of purchase and sale, but a contract of hiring and services, or a bargain by which one party undertakes to labor in a certain way for the other, who is thereupon to pay him compensation, and this contract is not therefore within the statute.
Were we at liberty to follow what seems to me to be the true rule on this subject, I should yield to the reasoning of the court in Hight v. Ripley, (19 Maine, 137,) in which many of the cases, both English and American, are reviewed, and it is shown that the foregoing rules are fairly deducible from them. But we are not, it seems to me, at liberty to dissent from the decisions of the courts of our own State. The question has been repeatedly before them, and they have with entire uniformity, I believe, held that when the contract is for the sale of goods, *529&c, on which work and labor is thereafter to he bestowed, in order to make and put it in the condition contemplated by the contract, it is not within the clause of the statute of frauds under consideration. In Crookshank v. Burrell, (18 John. 58,) the arrangement was to sell the wood work of a wagon. It was held not within the statute. The court repudiate the doctrine that executory contracts are not within the statute, but consider the agreement sued upon as a contract for work and labor. In Sewall v. Fitch, (8 Cowen, 215,) the contract was for nails, which were not all then manufactured; held not within the statute. These cases, and numerous others which might be cited, are clearly not within the statute, within any of the decisions; they are governed by the third rule of Parsons, above cited. But in the following cases the contract has been held not to be within the statute. In Bronson v. Wiman, (10 Barb. 406,) the contract was for so many barrels of flour, which were, I assume, thereafter to be either manufactured or purchased. Judge Gridley held it not to be within the statute. The question was not very distinctly up in the case, and it may not be binding upon us, but is entitled to our highest respect as the opinion of a distinguished lawyer and judge. This case is directly in conflict with Downs v. Ross, (23 Wend. 270.) That was an agreement for a quantity of wheat, part of which was in the granary and part unthreshed. In Robertson v. Vaughn, (5 Sandf. 1,) the agreement was for a quantity of shocks and heads for molasses hogsheads, which were thereafter to be made, and it was held not within the statute. Donovan v. Willson, (26 Barb. 138,) is on all fours with this case, and decisive of it. The agreement there was for beer thereafter to be made, and it was held by the general term of the 7th district not to be within the statute.
I can perceive no distinction in principle whether the subject matter of the contract is malt or beer; in each the material must be purchased. In each the raw material is *530transformed by labor'and chemical changes into something different from itself. "And I feel constrained to yield to this, although, as I have "already remarked, I entertain great doubts whether the construction which takes these cases out of the statute is correct.
[Oswego General Term, July 8, 1862.Mullin, Morgan and Bacon, Justices.]
The malt and the beer, of as good a quality, might have been purchased in the market and delivered in performance of these contracts. It does not appear that the -agreements were made with the manufacturers by reason of any particular skill which either possessed, or was supposed to posses/3, above others in the same branches of business; and unless this is the motive to the agreement, the contract is within the statute.
The objection was taken at the trial that there being no time limited within which the defendant was to purchase malt of the plaintiff, it was competent for him to stop at any time, and hence there could be no recovery. I have not examined this question, because the justice did not put the case upon that ground, and the plaintiff’s counsel has not alluded to it in his points. It would be improper for us now to decide it.
I am, therefore, in favor of reversing the judgment, and ordering a new trial, costs to abide the event.
Morgan, J., dissented.
blew trial granted.