Mead v. Case , 1860 N.Y. App. Div. LEXIS 161 ( 1860 )

Johnson, J.

The only question in this case, worthy of consideration, is that raised by the exception to the refusal to nonsuit the plaintiff, on the ground that the bargain for the monument in question was within the statute of frauds. ■ The contract, according to the verdict of the jury, was for a monument-to be furnished by the plaintiff to the defendant, for his deceased father, mother and sister. From the evidence it appears that the stone or structure, upon which the inscriptions were to be made, consisting of several pieces or parts, was put together into the form of the monument which the defendant desired, and was standing in the plaintiff’s shop, or in the yard adjoining, when it was selected, and the agreement made that it should be finished and delivered to the defendant thereafter. The, plaintiff, who was engaged in that business, went on, and as the jury have found, made and completed the monument according to the agreement.^ The defendant refused to accept it when offered, and the question arises whether this was an agreement for work and labor, and materials to be furnished,'or whether it was an agreement for the sale of personal property. This depends upon the ques-if'tion whether it was an agree¡an¡^g,,make a monument for the defendant, or to sell hinion^already made. If it was an agreement to make, or manufacture, one not already in existence, it is not within the statute of frauds, and the recovery is correct. (Sewall v. Fitch, 8 Cowen 215. Crookshank v. Burrell, 18 John. 58.) Spencer, J. in the last case, says, “however refined this distinction is, it is well settled, and it is now too late to question it.”

It is very plain, I think, that the monument bargained for was to be afterwards made, by the plaintiff’s labor and skill, and had no existence as such, at the time of the bargain. It is true that the material was jmesent, and had been worked into the general form which the defendant desired. All that was wanted was, to polish it properly, and engrave the necessary inscriptions upon it. But it was precisely this labor and skill that was necessary to convert it into the monument which the plaintiff agreed to furnish. Without this, it was no monument whatever; certainly not to the defendant’s deceased relatives.

~ A monument is something designed and constructed to perpetuate the memory of some particular person, or event. Before the material was polished and the inscriptions engraved upon it, it was a mere structure of stone, blank and meaningless. It was not this stone, in this condition, that the defendant bargained for; if it had been, the contract would most likely have been within the statute.. What he bargained for was the necessary labor and skill to convert this stone into an enduring memorial of the dead." This labor and skill did not convert the stone into an article of general merchandise, but into the particular thing bargained for. For any other purpose, the valuable material had been wholly destroyed. It was therfe^rely unEttecTfbr’a'sale to any other"person, or for any other purpose.^ It is argued that the value of the labor, required to convert the stone into the monument, is so insignificant, when compared with the price, and the value of the article when completed and ready for delivery, according to the agreement, that the law ought not to regard it as an agreement for the employment of labor and skill, but as the sale of a manufactured article.

It is a sufficient answer to this to say, that there is nothing in the evidence to show what proportion the value of the labor and skill bore to the value of the material. But if it did, it would furnish no test whatever. A great variety of articles, manufactured to order, will readily occur to every mind, in which the value of the labor in making up, bears a very small proportion to the cost of the article to the purchaser. Ho such test has ever been applied, and certainly this is not the case to which it should first be made applicable. A test of this kind would operate far less harshly if applied to articles adapted "to general sale, fit is also argued that the real manufacture of the monument in question consisted, mainly, in fashioning the several parts, of which the body was composed, and dressing them more or less perfectly. But this was mere labor in preparing the material, out of which a monument of that character might be made. When all that was done, the structure lacked wholly the essential characteristics of the thing required, and was converted into that thing solely by the application of additional labor and skill, of a different and higher character. It was as much converted, or manufactured, into a monument, after it was thus fashioned and put together, as a garment is made, or manufactured, from cloth previously manufactured from wool or other raw material; or a sign, by painting, or engraving the necessary inscriptions or devices upon wood, metal or other material previously prepared in that form ; or statuary by the delicate and skillful chiseling of the creative artist, after the marble has been wrought into the general form by ruder labor ; the process in each case, and degree of alteration, being somewhat different. ■

The judgment should therefore be affirmed.

Knox, J. concurred.