and seller met, so that it could be affirmed that a title passed at the time of the contract. The seller was to select, from the mass of lumber in his yard, certain portions that would comply with the buyer's order. The purposes of the parties could not even be accomplished by the process of selection. The lumber must be put in a condition to answer the order. It must be dressed and cut into required sizes. The contract called for distinct parcels of surface pine boards, clapboards, and matched ceiling. Part of the lumber was surfaced, and a portion of it still in the rough. The clapboards were manufactured from stuff one and a quarter inch thick. It had to be split, surfaced and rabbeted. The order for the various items was a single one, there being fifteen thousand, four hundred and forty-one feet of the surface pine, ten thousand one hundred and forty-four feet of clapboards, and eight thousand feet of matched ceiling. The surface boards and the ceiling were in existence, and only needed dressing to comply with the order. Whether the clapboards can be deemed to have been in existence may be more doubtful. If a part of the order is within the statute of frauds, and a portion of it without it, the whole transaction must be deemed to be within it, as an entire contract cannot, in this case, be divided or apportioned. I think it clear that the contract was in its nature entire. It was in evidence that the intention was to buy enough, in connection with what Percival had on hand, to make up a boat load. This could only be accomplished by using the entire amount of the order. Accordingly even if the contract for the clapboards was not a sale, it cannot be separated from the rest of the order, and the cases above cited are applicable.

"The question is thus reduced to the following proposition: Is a contract which is, in form, one of sale of lumber then in existence for a fixed price, where the seller agrees to put it into a state of fitness to fill the order of the purchaser, his work being included in the price, in fact, a contract for work and labor and not one of sale, and accordingly not within the Statute of Frauds?

"The New York statute is made applicable to the 'sale of any goods. chattels, or things in action,' for the price of $50 or more. The words 'goods and chattels' are, literally taken, probably more comprehensive than the expressions in the English statute, 'goods, wares, and merchandise.' It will be assumed, however, in this discussion, that they are equivalent.

"There are at least three distinct views as to the meaning of the words in the statute. These may be called, for the sake of convenience, the English, the Massachusetts, and the New York rules, as representing the decisions in the respective courts.

"The English rule lays especial stress upon the point, whether the articles bargained for can be regarded as goods capable of sale by the professed seller at the time of delivery, without any reference to the inquiry whether they were in existence at the time of the contract or not. If a manufacturer is to produce an article which at the time of delivery could be the subject of sale by him, the case is within the Statute of Frauds. The rule excludes all cases where work is done upon the goods of another, or even materials supplied or added to the goods of another. Thus if a carriage maker should repair my carriage, both furnishing labor and supplying materials, it would be a contract for work and labor, as the whole result of his efforts would not produce a chattel which could be the subject of a sale by him. If on the other hand, by the contract he lays out work or materials, or both, so as to produce a chattel which he could sell to me, the contract is within the statute. This conclusion has been reached only after great discussion and much fluctuation of opinion, but must now be regarded as settled. The leading case upon this point is Lee v. Griffin, 1 Best & Smith, 272; Benj. Sales, 77. The action was there brought by a dentist to recover twentyone pounds sterling for two sets of artificial teeth, made for a deceased lady of whose estate the defendant was executor. The court held this to be the sale of a chattel within the Statute of Frauds. Blackburn, J., stated the principle of the decision in a clear manner: 'If the contract be such that it will result in the sale of a chattel, then it constitutes a sale, but if the work and labor be bestowed in such a manner as that the result would not be anything which could properly be said to be the subject of sale, the action is for work and labor.'

"The Massachusetts rule, as applicable to goods manufactured or modified after the bargain is made, mainly regards the point whether the products can, at the time stipulated for delivery, be regarded as 'goods, wares, and merchandise,' in the sense of being generally marketable commodities made by the manufacturer. In that respect it agrees with the English rule. The test is not the nonexistence of the commodities at the time of the bargain.

It is rather whether the manufacturer produces the article in the general course of his business, or as the result of a special order. Goddard v. Binney, 115 Mass. 450, 15 Am. Rep. 112. In this very recent case, the result of their decision is stated in the following terms: 'A contract for the sale of articles then existing, or such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods to which the statute applies. But on the other hand, if the goods are to be manufactured especially for the purchaser and upon his special order and not for the general market, the case is not within the statute.' Under this rule it was held in Gardner v. Joy, 9 Metc. 177, that a contract to buy a certain number of boxes of candles at a fixed price per pound, which the vendor said he would manufacture and deliver in about three months, was held to be a contract of sale. On the other hand, in Goddard v. Binney, supra, the contract with a carriage manufacturer was that he should make a buggy for the person ordering it, that the color of the lining should be drab, and the outside seat of cane, and have on it the monogram and initials of the party for whom it was made. This was held not to be a contract of sale within the statute.

"The New York rule is still different. It is held here by a long course of decisions 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."

§ 37. Different View-Points of the English and American Rules. The distinction between the English rule of Lee v. Griffin and of the Massachusetts rule in Mixer v. Howarth, and of the New York rule in Parsons v. Loucks, is, in the main, based upon the intention of the parties, whether the parties intended title to pass or not. The American rules look to the actual situation of the thing in regard to which the contract is made. If the thing is not in existence or is to be specially made, in both the

States named, the contract is one not of sale, but for labor and materials. The Massachusetts rule has been called the "special order" rule. If the article is one such as the seller manufactures in the ordinary course of his business for the trade, the contract is one of sale; if it is not such an article, but is to be made for a special purpose, or to comply with the requirements of a particular purchaser, the contract is for work and labor. Under this rule the plaintiff in the English case for the set of false teeth would be entitled to recover as for work and labor. Under the New York rule, in order that the contract of sale should fall within the statute, the subjectmatter of the sale must be in existence at the time the contract is made. If it is in existence, although work may still remain to be done upon it to suit the buyer's taste or comply with his order, it is still a sale. So in the case of the false teeth, the dentist could recover only for labor and materials in New York, as the contract would not be one of sale, the teeth not being in existence.

COMPLIANCE WITH STATUTE

The seventeenth section lays down three requirements, one of which must be complied with before a contract of sale "shall be allowed to be good." These three requisites are: first, that the buyer shall accept part of the goods so sold, and actually receive the same; or, second, give something in earnest to bind the bargain, or in part payment; or, third, that some note or memorandum in writing of the bargain shall be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized. We will take up and discuss in their order these different requirements.

§ 38. Receipt and Acceptance. Receipt by the buyer implies delivery by the vendor, and the receipt must be of a part of the goods sold. A receipt of samples would not suffice. By receipt is meant a physical act, and is usually accompanied or followed by acceptance, though the acceptance may precede actual receipt. There may be

receipt of goods without acceptance, but this is not a compliance with the statute. Acceptance is a mental act, and means that the buyer regards the goods as fulfilling the terms of the contract of sale.

The time of receipt and acceptance of the goods need not be the same as the time of the making of the contract in order to comply with the statute. Indeed, delivery and acceptance usually follow the making of the contract. In many cases, too, the time of acceptance is subsequent to the time of receipt of the goods, as where goods are shipped by a merchant in one city to a merchant in another. The goods are received as soon as they pass into the hands of the buyer or his agent, but the buyer is entitled to a reasonable time thereafter within which to inspect and examine the goods and determine whether they answer the terms of the contract.

Receipt and Acceptance Two Different Things. Receipt and acceptance are distinct and separate acts. The word "acceptance" has a strictly defined legal meaning. It includes more than the receipt of the goods, which is merely taking them into possession. Only when the seller has parted with the actual control of the goods and the buyer has accepted such control, can he be said to have received them. There may be receipt of goods without acceptance and there may be acceptance without actual receipt. In many cases the buyer receives the goods in order to determine whether he will accept them or not. This is true when goods are ordered by sample, or are bought without first being inspected. Again it may happen that a portion of the goods must be used before the buyer can determine whether he wants to accept them or not. A delivery to a carrier or an agent of the buyer, while amounting to a receipt of the goods by the purchaser, will not be regarded as an acceptance. Where a purchaser accepts part of the goods, he is thereafter bound to accept the remainder, except in case of fraud.

Acceptance Actual or Constructive. Acceptance may be either actual or constructive, but it must be clear that the