Gilbert v. Copeland , 22 Ga. App. 753 ( 1918 )

Jenkins, J.

(After stating the foregoing facts.) The question is, did Bell, under his contract with Gilbert, agree to sell his labor, or did the product of his labor -constitute the subject-matter of the contract? In other words, did Bell, under the terms of that writing, obligate himself to work as a laborer, in accordance with stipulated rules and restrictions, in the production for Gilbert, and under the latter’s direction, of a certain commodity, at a wage to be determined by the amount of the output produced and delivered ; or must the intent and purport of the writing be taken as constituting an' executory contract for the sale of a commodity, whereby Bell obligated himself to produce for himself, and then to sell and deliver to Gilbert, a certain described product of his labor ? It is plain that, by the explicit terms of the instrument itself, the first construction is declared to haye been the intent of the parties to the'agreement. Must the law set up a contrary construction? In the contract Bell agrees “to raise for and deliver.to D. H. Gilbert’^ the described seed; and it is further stated, as showing the intent of the parties, that “the stock seed and the seed.crop produced therefrom is, and is to remain, the property of D. H. 'Gilbert.” Then follow certain stipulations of.the contract, governing and restricting the grower of the seed in his work of production, with a provision added that “D. H. Gilbert or his agent may at any time enter the field and at his own expense make such examinations, selections, or rejections as he deems desirable for the betterment of the crop for seed purposes, and he is not to pay for any necessary damage, if any, to the general crop, resulting from such work.” The contract concludes as follows: “In consideration of the faithful carrying out of the provisions of 'this agreement on the part of the said John Bell, and for his services in the growing and delivering said seed [italics ours], D. H. Gilbert hereby agrees to pay him at the rate of ten cents per pound for all the seed satisfactory to said B. H. Gilbert which he may deliver in accordance with this agreement, in excess of the stock seed' furnished him, said payment to be made immediately upon the receipt of such seed and the ascertaining by B. H. Gilbert that it is vital and fit for seed purposes.” The contract as made between Gilbert and Bell being'in writing, no question arises as to the application of the statute of frauds; but we think an answer to the question which is in fact involved can be arrived at by determining whether, if this contract had not been in writing, Bell, upon himself complying with its terms, could have enforced fulfillment on the part of Gilbert.

In the case of Cason v. Cheely, 6 Ga. 554, Judge Nisbet, speaking for the court, said: “If the contract is for the sale of goods, it is within the statute, and if for work and labor done, it is not. The real difficulty is to fix a rule by which it may be determined what contracts are for the sale of goods, and what for work and labor done. There are two classes of cases which are easily determinable. Where- the article exists at the time in solido and is capable of immediate delivery (as cotton in bags), the contract is clearly within the statute, as in Cooper v. Elston [7 T. R. 14]. All contracts for the sale of goods existing at the time in solido and capable of immediate delivery constitute a class about which there can be no difficulty—they are within the statute, without a case to the-contrary. The other class of contracts which are equally free from difficulty are like that in Towers v. Osborne [1 Strange, 506], where an agreement is made for goods not in esse, and, therefore, incapable of immediate delivery, but, by the agreement, to be made by .the work and labor and with the material of the vendor, and which when made.may be reasonably presumed to be unsuited to the general market,—such as contracts for the manufacture of goods suited alone to a particular market, or for the painting of one’s own portrait. In the former class the contracts are for the sale of goods upon which no work or labor is to be bestowed. In the latter class the work and labor and material constitute the prime consideration. * They are for work and labor, and are, by authority and upon principle, without the influence of the statute. Ex equo et bono, a man who agrees to bestow his labor in the manufacture of goods for a price, and which price he must lose unless the goods are received by him who ordered them, ought to be paid; and a statute which would .protect the purchaser from liability in such a case would be alike impolitic and unjust. The eases which are difficult of determination are those which partake in some degree of both the classes referred to,, yet fall decidedly within neither.” In that opinion (p. 561) the following rule is adopted: “Such contracts only are excluded from the operation of the 17th section of the Statute of Frauds ‘as primarily contemplate work and labor to be done, at the instance of the purchaser, and for his use and accommodation, so as to make the work and labor of the contracting vendor, or such as he may‘procure to be bestowed at his -expense, the essential consideration of the contract.’ ”

In the instant case a particular stock of seed was furnished to Bell, the increase from which he agreed to “raise for and deliver to D. H. Gilbert.” - The method and manner of1 cultivation is prescribed by the terms of the contract, by which Gilbert is given the right, either for himself or through an' agent, to “at any time enter the-field and at his own expense make áueh examination, selections, or rejections as he deems desirable for the betterment of the crop for seed purposes,' and he is not to pay for any necessary damage, if any, to the general crop, resulting from such work.” Had this contract not been in writing, yet Bell had taken the seed thus furnished him and faithfully complied with the terms of the agreement as to how the seed should be grown and prepared, and had recognized all the fights and privileges given Gilbert under the agreement, could it be said that Bell could not have enforced a compliance on the part of Gilbert?' We think that he could have done so. That the product of the culture, in point of fact, appears to have had a value to at least one person other than the seedman for whom they were grown is shown by the actual sale to the defendant in trover, and for an increased price; however, this can not negative the fact that the commodity was nevertheless of a “peculiar character,” and was not only a particular seed stock, grown for a particular person, but was grown under particularly prescribed stipulations and under Gilbert’s right of direction; and since the contract itself says that the seed were to be raised for> Gilbert, and that the compensation provided for by the agreement was “for his services in the growing and delivering” of the seed, which were “to remain the property of Gilbert,” we see no sufficient reason why a different cdnstruction must be enforced as a matter of law.

Judgment reversed.

Wade, O. J., concurs. Luke, J., absent on account of illness.