manufacture at the defendants' own mills, and deliver at a specified price, 20,000 pounds of paper of specified sizes, no part of which was in existence at the time of making the contract, but was yet to be brought into existence by the labor and science of the defendants. It was there held, in an action to recover damages for an alleged breach of the contract to manufacture and deliver the paper, that the statute of frauds did not apply to the contract.

The New York rule is, that "an agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered, such as flour from wheat not yet ground, or nails to be made from iron belonging to the manufacturer, is not a contract of sale. The New York rule lays stress on the word 'sale.' There must be a sale at the time the contract is made. The contrast between Parsons v. Loucks and Lee v. Griffin is, that in the former case, th word 'sale' refers to the time of entering into the contract, while in the latter, reference is had to the time of the delivery, as contemplated by the parties. If at that time it is a chattel it is enough, according to the English rule" (9). And yet, in that case, it was held that an order for certain quantities of lumber, which needed to be dressed and cut up into different sizes desired, the order being complied with and the lumber placed as ordered upon the plaintiff's dock, where it was burned, was within the statute of frauds. There were here no new

(9) Dwight, C., in Cooke v. Millard, 65 N. Y. 352.

products, but there was simply to be gone through with a process of dividing and adapting existing materials to the plaintiff's use. The real test in the New York rule is the existence or non-existence of the chattel at the time the contract is made. If the chattel is not in existence at the time that the contract is made, it is a contract for work and labor, and not a sale. If the chattel is in existence, then it is a sale.

§ 17. "Goods, wares, and merchandises." The three words were used in the English statute and are used in most of the American statutes, but the single term "goods," as used alone in the Sales Act, as defined in the Act itself, sec. 76 (§ 19, below), is sufficient. It is often difficult to determine just what constitutes "goods." An important distinction is between real and personal property. While under the fourth section of the statute of frauds, it is provided that no "action shall be brought upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized," it is often necessary to determine into which class of property the subject of the contract falls. Under the fourth section, the contract must be in writing whatever the value of the land or interest therein, whereas the seventeenth section does not affect contracts for the sale of goods where the price is less than ten pounds sterling. The only manner of satisfying the statute under the fourth section is by a writing, while the

seventeenth section may be satisfied not only by a writing, but also by an acceptance and receipt of part of the goods so sold, or by the giving of something in earnest to bind the bargain or in part payment.

§ 18. Growing crops and timber. Fructus industriales and fructus naturales. A distinction is made between fructus industriales, crops planted and raised annually by the hand of man, and fructus naturales, crops or timber growing upon the land as natural products, though often transplanted or cultivated. A sale of growing crops which must be planted annually, fructus industriales, is everywhere held to be within the seventeenth section of the statute, as a sale of personal property (10). There is not the same uniformity in respect to the natural products of the soil, fructus naturales. It is generally held that if, by the terms of the contract, they are to be severed from the soil within a reasonable time, they are to be considered personal property, and hence goods, within the seventeenth section of the statute; while, if they are to remain affixed to the soil they are to be considered as an interest in land, within the fourth section.

In regard to sales of growing or standing timber, there are conflicting rules in the American decisions. "The courts of most of the American states, however, that have considered the question, hold expressly that a sale of growing or standing timber is a contract concerning an interest in land, and within the fourth section of the

(10) Evans v. Roberts, 5 B. & C., 829.

statute of frauds" (11). In Green v. Armstrong (12) it was held that an agreement for the sale of growing trees, with the right to enter on the land at a future time and remove them, was a contract for the sale of an interest in land. It was there said: "Where the subject matter of a contract of sale is growing trees, fruit, or grass, the natural produce of the earth, and not annual productions raised by manurance and the industry of man, as they are parcel of the land itself, and not chattels, the contract, in order to be valid, must be in writing" (i. e., under the section of the New York statute declaring that every contract for the sale of any interest in lands shall be void unless in writing). The parties here intended that the property in the trees should pass before they were severed from the soil. In Smith v. Surman (13) an action was brought to recover the value of a quantity of ash timber, at a certain price per foot, the contract having been made at the time the trees were being felled. It was held to be a sale of personal chattels, and the rule was stated that "where the contracting parties contemplate a sale of goods, although the subject matter at the time of making the contract does not exist in goods, but is to be converted into that state by the seller's bestowing work and labor on his own raw materials: that is a case within the statute" (i e., relating to goods, wares and merchandise).

Where the vendor refuses to comply with the agree

(11) Hirth v. Graham, 50 Ohio State, 57.

(12) 1 Denio (N. Y.), 552.

(13) 9 B. & C., 561,

ment, either to sever the trees from the soil himself or to allow the purchaser to do so, authorities differ as to whether the vendor is responsible in damages. The Massachusetts court (14) held that he was liable, but the New York court (15) held the opposite. A contract for the sale of minerals, building materials, and fixtures is governed by the same principles as a contract for a sale of fructus naturales.

§ 19. Miscellaneous property. Choses in action. Sales Act. Buildings erected upon leased land, with no intent that they shall become a part of the realty, are personal property and may be removed or sold by the tenant, as personal property. Water, separated or to be separated from a stream or lake, and ice are personal property (16).

In England, a contract for the sale of shares of stock in a joint stock company is not a contract for the sale of goods, wares or merchandises, within the statute (17), but in this country the rule is generally otherwise (18). Bonds and mortgages and bills and notes have been held to be within the statute. The Sales Act expressly includes all choses in action. In Greenwood v. Law (19) it was said that the term "goods, wares, and merchandise" is equivalent to the term "personal property." A

(14)

Whitmarsh v. Walker, 1 Metcalf, 313.

(15) Green v. Armstrong, 1 Denio, 552.

(16) Jersey City v. Harrison, 72 N. J. Law, 185; Higgins v. Kusterer, 41 Mich., 318.

(19) 55 N. J. Law, 168; Hudson v. Weir, 29 Ala., 294; Somerby v. Buntin, 118 Mass., 279. Contra, Vawter v. Griffin, 40 Ind., 593.