It appears to me the plaintiff may recover on the count, for work, labor and materials. I shall, therefore, deny the non-suit.(1)
Verdict for plaintiff.
*329In January term, this question was argued by Anthon, for defendants, and Ketchum, for plaintiff. Anthon cited the cases above stated, and Ketchum, referred to Boorman v. Johnson, (12 Wend. 577,) to show that the variance was amendable under 2 R. L. 406, sec. 79.
The court confirmed the verdict.
The chief justice, in this case, was clearly wrong on the grounds asserted by him. Mo recovery could be had upon the evidence in this case, on any count except the first, and the counsel for the plaintiff was right in confining his efforts to that count, and to the right to amend it under the statute. *329- The property had not so passed to the defendant as to enable the plaintiff to recover on the counts for goods bargained and sold, or for work, labor and materials. When a thing is ordered to be made, while it is in progress, the materials belong to the maker. The property does not vest in the party who gives the order, until the thing ordered is completed, and although, while the thing is in progress, the maker may intend them for the person ordering, still he may afterwards deliver them to another, and tiiereby vest that property in that other’. Although the maker may thereby render himself liable to an action for' so doing, still a good title is given to the party to whom they are delivered.
As to the counts for work and labor: .if you employ a man to build a house on your land, or to make a chattel with your materials, the party who does the work has no power to appropriate the produce of his labor and your materials to any other person. Having bestowed his labor, at your request, on your materials, he may maintain an action against you for work and labor. But if you employ another, to work up his own materials, in making a chattel, then he may appropriate the produce of that labor and materials to any other person. Ho right to maintain an action vests in him during the progress of the work, but when the chattel has assumed the form bargained for, and the party has accepted it, the party employed may maintain an action for goods sold and delivered; or, if the employer refuse to accept, a special action on the case for such refusal. But he cannot maintain an action for work and labor, because his work and labor was bestowed on his own materials, and for -himself, and not for the person who employed him.
These are the words of Bayley, J., in Atkinson v. Bell, (8 Barn. & Cres. 277,) and while on the one hand they show clearly the rules of law governing this species of contract, they, on the other, redeem the ancient practice from the censure of the ignorant, showing how closely connected the sound principles of the law are with well pleading. The rigor of the rule consisted well with that era of legal science, which exacted the viginti amwrum lu*330cubratíones, and the statutes in modem times, authorizing amendments ad libitum, consist better with the present. The section of the statute relied upon by the plaintiff and under which the case was ultimately decided, was quite broad enough to sustain such decision. It was not a case of surprise, and, therefore, the court might disregard it at the trial, or amend after verdict.