dissented, and delivered the following opinion:
It is entirely clear, on the cases decided by this court, that the contract in question is without the statute of frauds. Small v. Fitch, 8 Cowen, 215, 219, and the cases there cited. 2 Kent's Comm. 511, 12, note d, 3d ed. The wheat was none of it in a condition for transportation and delivery. Most of it was unthreshed, and that in the bin was to be cleaned. The contract was, in part, for work and labor in finishing the preparation of the whole, which both the English and New-York cases denied, until very lately, to be a sale of goods within the meaning of the statute of frauds. That statute respects a sale. The cases said it meant a sale unmixed with a contract of labor in preparing the article for delivery. I admit that the mere circumstance of agreeing to transport and deliver will not take away the character of a simple sale. Jackson v. Covert's adm'rs, 5 Wendell, 138. Astey v. Emery, 4 Maule & *Selw. 262. Nor do I deny, that [ *276 ] were the question open, a contract to manufacture and sell would more correctly be considered a sale within the statute. But I am not prepared to concede that the decisions for more than half a century, both at Westminster Hall and in this state, are so obviously absurd, that we ought now to overturn them. It is true, that the king’s bench have recently, A. D. 1822, repudiated the case of Clayton v. Andrews, 1767, after so long acting upon it (and the common pleas too) as having settled the doctrine of the very case at bar, a sale of wheat, understood by both parties to be unthreshed. Garbutt v. Watson, 1 Dowl. & Ryl. 219; 5 Barn. & Ald. 613, S. C. followed by Smith v. Surnam, 4 Mann. & Ryl. 455 : 9 Barn. & Cress. 561; and see Watts v. Friend, 5 Mann. & Ryl. 439, and the cases there cited; 10 Barn. & Cress. 446, S. C. Best, J. in Garbutt v. Watson, chose to characterize former adjudications of his court as absurd. We have not heretofore deemed, them so ; and if there be the least obligation to abide by rule founded on a settled course of-decision, the case in which he was taking part is not law. I think there is such an obligation. The principle of the rule existed, and was acted upon in England from the year 1720. It was then held in Towers v. Osborne, 1 Strange, 506, and Clayton v. Andrews proceeded upon that.
It will be perceived that I have treated the second objection taken at the trial as unfounded in point of fact. If the wheat in the bin had been cleaned, the contract for so much would have been void ; and it would have followed according to the settled doctrine in respect to such contracts, that the whole would have been void, and the judge should have nonsuited the plain*276tiff. Thayer v. Rock, 13 Wendell, 53, and the books there cited. But I take the principle of the former English cases, and all the cases in this court to be, that where the article which forms the subject of sale is understood by the parties to be defective in any particular which demands the finishing labor of the vendor, in order to satisfy the bargain, it is a contract for work and labor, and not of sale, within the meaning of the statute. 2 [ *277 ] Kent's Comm. 512, note, 3d ed. The judge told the jury *so, and they found the fact. This construction of the statute of frauds, (see the same note,) has been corrected by the stat. 9 Geo. IV. ch. 14, which extends it to unfinished articles ; a method which I must be allowed to think much more accordant with sound legal sense, than that which was undertaken in Crarbutt v. Watson.
New trial granted.