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main question which arose at the trial was, whether the CHAP. IV. contract in the second count could be treated as one for work and labour, or whether it was a contract for goods sold and delivered. The distinction between these two causes of action is sometimes very fine; but, where the contract is for a chattel to be made and delivered, it clearly is a contract for the sale of goods. There are some cases in which the supply of the materials is ancillary to the contract, as in the case of a printer supplying the paper on which a book is printed. In such a case an action might perhaps be brought for work and labour done, and materials provided, as it could hardly be said that the subject-matter of the contract was the sale of a chattel; perhaps it is more in the nature of a contract merely to exercise skill and labour. Clay v. Yates turned on its own peculiar circumstances. I entertain some doubt as to the correctness of that decision; but I certainly do not agree to the proposition that the value of the skill and labour, as compared to that of the material supplied, is a criterion by which to decide whether the contract be for work and labour, or for the sale of a chattel. Here, however, the subject-matter of the contract was the supply of goods. The case bears a strong resemblance to that of a tailor supplying a coat, the measurement of the mouth and fitting of the teeth being analogous to the measurement and fitting of the garment." Hill, J. said: "I think that the decision in Clay v. Yates is perfectly right. That was not a case in which a party ordered a chattel of another which was afterwards to be made and delivered, but a case in which the subjectmatter of the contract was the exercise of skill and labour. Wherever a contract is entered into for the manufacture of a chattel, there the subject-matter of the


Contract to make up materials and affix them to land.

contract is the sale and delivery of the chattel, and the party supplying it cannot recover for work and labour. Atkinson v. Bell is, in my opinion, good law, with the exception of the dictum of Bayley, J. which is repudiated by Maule, J. in Grafton v. Armitage." And Blackburn, J. said: "I think that in all cases, in order to ascertain whether the action ought to be brought for goods sold and delivered, or for work and labour done and materials provided, we must look at the particular contract entered into between the parties. If the contract be such that when carried out, it would result in the sale of a chattel, the party cannot sue for work and labour; but if the result of the contract is that the party has done work and labour which ends in nothing that can become the subject of a sale, the party cannot sue for goods sold and delivered. .. In the present case, the contract was to deliver a thing which, when completed, would have resulted in the sale of a chattel; in other words, the substance of the contract was for goods sold and delivered. I do not think that the test to apply to these cases is whether the value of the work exceeds that of the materials used in its execution, for if a sculptor were employed to execute a work of art, greatly as his skill and labour, supposing it to be of the highest description, might exceed the value of the marble on which he worked, the contract would, in my opinion, nevertheless be a contract for the sale of a chattel."

A contract to make up materials and to affix them to the freehold, such as a contract to build a house or to manufacture an engine, is not a contract for the sale of goods, and the contractor cannot recover for the materials in an action for goods sold and delivered, though,

by reason of a deviation from the original plan, the contract is superseded as to the price.(a)

Where a number of articles are purchased at the same time, and the contract is entire, it will, if the total price or value of the goods is beyond £10, be within the Statute of Frauds and Lord Tenterden's Act, although the price or value of each particular article is less than £10. Thus, in Baldey v. Parker (b), the defendant went to the shop of the plaintiffs, who were linen-drapers, and contracted for the purchase of various articles, each of which was under the value of £10, but the whole amounted to £70. A separate price for each article was agreed upon; some, A marked with a pencil, others were measured in his presence, and others he assisted to cut from larger bulks. He then desired that an account of the whole might be sent to his house, and went away. Upon the goods being sent with the account, the defendant asked for a discount for ready money of £20 per cent. This was refused, and he thereupon refused to accept the goods. It was held that this was all one contract, and therefore within the statute.

In order to satisfy the Statute of Frauds it is not necessary that the acceptance of the goods should follow or be contemporaneous with the receipt of them; an acceptance prior to the receipt will be sufficient.

This point was raised, but not actually decided, in Saunders v. Topp.(c) There the defendant verbally agreed to buy some sheep which he selected from the plaintiff's flock, and directed them to be sent to a field of

(a) Cotterell v. Apsey, 6 Taunt. 322; Tripp v. Armitage, 4 M. & W. 687; Clark v. Bulmer, 11 M. & W. 243.

(b) 2 B. & C. 44; 3 D. & R. 220.

(c) 4 Exch. 390; 18 L. J. Ex. 374.

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his, which was accordingly done. Two days afterwards he sent his man to remove the sheep from the field to his farm, which was some miles distant, and on their arrival he counted them over and said, "It is all right." The Court considered that it was not necessary to decide whether there could be an acceptance before receipt, and held that there was evidence for the jury of acceptance by the defendant of the sheep.

In Cusack v. Robinson (a) it appeared that the defendant went with one of the plaintiffs to the cellar of the firm, where he was shown a lot of 156 firkins of butter, six of which he opened and inspected. Afterwards, on the same day, the defendant agreed to buy that specific lot. The plaintiffs, by the directions of the defendant's agent, forwarded the butter by carrier to an address given. It was held that there was nothing in the statute to imply an intention that an acceptance prior to the receipt would not suffice. Blackburn, J., in delivering the judgment of the Court, distinguished the case from Nicholson v. Bower, (b) where 141 quarters of wheat, sent by railway, addressed to the vendees, arrived at their des‐ tination, and were there warehoused by the company under circumstances that might have been held to put an end to the unpaid vendors' rights, saying, "The contract was not originally a sale of specific wheat, and the vendees had never agreed to take those particular quarters of wheat; on the contrary, it was shown to be usual, before accepting them warehoused, to compare a sample of the wheat with the sample by which it was sold; and it appeared that the vendees, knowing they were in embarrassed circumstances, purposely abstained from accepting the goods.”

() 1B & S. 299

(†) 1 E. & E. 172.

In Kershaw v. Ogden, (a) an agent of the defendants agreed to purchase four stacks of cotton waste at 1s. 9d. a pound from the plaintiff, the defendants to send their packer and sacks, and their cart to remove it. This the defendants did, and the packer with the assistance of the plaintiff's men packed the wool into eighty-one sacks. A couple of days afterwards twenty-one sacks were weighed, put into the defendants' cart and taken to their premises, together with a delivery order stating the weight. remainder of the sacks were not weighed. On the same day the twenty-one sacks were returned by the defendants, with a note stating that the waste was of an inferior description, and the plaintiff replaced them in his warehouse. It was held that there was evidence of acceptanco and receipt to go to the jury. (b)



after action

In Fricker v. Tomlinson, (c) it was thought that the Acceptance objection that a contract is void under the statute, would brought. be answered by showing an acceptance and actual receipt of part of the goods after action brought. But in Bill v. Bament, (d) the defendant after action brought wrote in the ledger of the plaintiff's agent, containing the statement of the goods in question in the suit and headed with the plaintiff's name, the words, "Received the above," which he signed, and it was held that there was no evidence to go to the jury of a delivery and acceptance sufficient to satisfy the statute.


In order to satisfy the statute, there must be a delivery Test of of the goods by the vendor, with an intention of vesting the right of possession in the vendee; and there must be

(a) 3 H. & C. 717; 34 L. J. Ex. 159.

(b) And see Hodgson v. Le Bret, 1 Camp. 233.

(c) 1 Man. & Gr. 772.
(d) 9 M. & W. 36.

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