operis faciendi, being the usual contract for labor and services to be bestowed upon the thing bailed; and, second, locatio operis mercium vehendarum, which is a contract relating to the carriage of goods for hire. This second branch embraces the duties of common carriers, and requires to be considered by itself.

Where cloth is delivered to a tailor to be made up into a suit of clothes, the contract is for the labor and services of the tailor; this is the object of the bailment, known as locatio operis faciendi; but it is not the whole of his undertaking; he is not only obliged to perform his work in a workmanlike manner, but since he is entitled to a reward, either by express bargain or by implication, he must also take ordinary care of the thing bailed to him.1 So, a jeweler who receives a gem to be set or engraved, and a watchmaker with whom a watch is left for repairs, are bound to perform the work skillfully, and keep the articles entrusted to them, with that care and diligence which every man of common prudence and capable of governing a family, takes of his own property of a like kind.2

a ma

The contract is the same wherever materials are delivered to a workman or mechanic to be manufactured or made up by him in the course of his business or trade, and then returned to the owner. Where the same thing is not to be returned in its new or manufactured condition, as where silver is delivered to a silversmith on an agreement that he shall return therefor silver plate of equal value, the contract is one of sale and not one of bailment; it is an exchange of property; 3 terial point, on account of the different liabilities which may arise out of the transaction in the case of a loss of the property, without any neglect on the part of the silversmith. Whether or not the title passes, depends upon the terms of the contract. If the product of the identical thing delivered is to be returned in its manufactured condition, it is a bailment, though it be changed in the manufacturing process into an entirely new and different article; as where corn is delivered to be manufactured into whisky; or logs to be sawed into boards. The process of manufacture does not affect the title.5

4

§ 411. Contracts to make or to sell. Contracts to furnish materials and construct or manufacture goods or chattels or machines, do not involve a bailment, and they are not sales; the title does not pass until the article is finished and delivered, and the statute of frauds does not apply:

1 Jones on Bailm., 90, 92.

2

2 Kent's Comm., 588; Clark v. Earnshaw, 1 Gow. N. P. C., 30.
Norton v. Woodruff, 2 N. Y., 153; 2 Kent's Comm., 589.

4 Smith v. James, 7 Cowen, 328.

Pierce v. Schenck, 3 Hill R., 28; Smith v. Clark, 21 Wend., 83.

as in a contract to furnish materials and make a garment or the woodwork of a wagon; 1 or to manufacture and deliver a certain amount and quality of paper for a given price; 2 or to construct and deliver a ship, or cars, for a price agreed upon.3 The contract is for work and services, and it is the intention of the parties that the title shall pass on the completion and delivery of the property. The rule is not different where the employer is to furnish some slight portion of the materials: the owner of the principal materials acquires the title to the completed article or structure, the lesser materials becoming his by right of accession.5

416.

'Crookshank v. Burrell, 18 John. R., 58; Evans v. Wood, 15 Abbott Pr.,

2 Parsons v. Loucks, 48 N. Y., 17; Spencer v. Cone, 1 Metcalf, 293.

3 McConihee v. N. Y. & Erie R. Co., 20 N. Y., 495; Low v. Austin, 20 N. Y., 181; 25 Barb., 26.

4

Seymour v. Montgomery, 1 Keyes, 463; Merritt v. Johnson, 7 John. R., 473. Merritt v. Johnson, supra; McConiheo v. N. Y. & Erie R. Co., 20 N. Y., 495. A shipbuilder who agrees to furnish the framework and build a vessel for another, retains the title until the vessel is completed and delivered. (Merritt v. Johnson, 7 John. R., 473.) The doctrine held by the English courts is supposed to involve a slight modification of this rule, though it is in substance the same. A shipbuilder contracts to build and complete a ship for his employer, who agrees to pay for her in four installments as the work progresses; the first when the keel is laid, the second when at the light plank, and the third and fourth when the ship is launched; before the third installment is paid, the ship is measured with the builder's consent with a view to get her registered in the name of the employer, and thereupon the builder signs the usual certificate of her building; the third installment is paid, and the ship is registered in the namo of the employer, on his oath that he is the owner; directly after, the builder commits an act of bankruptcy upon which a commission is subsequently issued and his property conveyed to assignees; two days after, and before the ship is either completed or launched, the employer, with a crew hired by him, takes possession of her and a rudder and cordage made and purchased by the builder for the express purpose of completing the ship; and it is adjudged that tho legal effect of the shipbuilder's having signed the certificate to enable the em ployer to have the ship registed in his name, is to vest in him the general pro perty in the ship from the date of the registry; that the rudder and cordage, made and bought by the builder specifically for the purpose of completing the ship, became part of it and vested in the employer; and, finally, that the builder had not so parted with the possession as to defeat his lien for the fourth installment. (Woods v. Russell, 5 Barn. and Ald. R., 942.) The opinion delivered distinguishes this case from that of Mucklow v. Mangles, where the advances were not regulated by the progress of the work, and the builder was at liberty to deliver any barge answering the requirements of the contract; and argues that the signing of the certificate of building was a delivery—an act de signed to pass the property, so as to enable the employer to swear the title to be in himself; but that it was not such a delivery as to defeat the lien of the builder

§ 412. In like manner where goods are ordered to be made, the materials remain the property of the maker during the process of manufacture. By accepting the order, the maker enters into an executory contract to

for the balance due him on the contract. (1 Taunt. R., 318.) In this State (New York) a contract for the building of a vessel or other thing not yet in essc, does not vest any property in the party for whom it is agreed to be constructed during the progress of the work, nor until it is finished and delivered, or at least ready for delivery, and approved by such party: Andrews v. Durant, 1 Kernan R., 55, and cases there cited.

If a person contracts with another for a chattel which is not in existence at the time of the contract, though he pays him the whole value in advance, and the other proceeds to execute the order, the buyer acquires no property in the chattel till it is finished and delivered to him. This is the original doctrine of the common law. (Mucklow v. Mangles, 1 Taunt. R., 318; Hinde v. Whitehouse, 7 East R., 559. This case shows what circumstances will operate to pass the title on a sale by an auctioneer.) The case of Mucklow v. Mangles, presented this state of facts: Royland, who was a barge-builder, had undertaken to build the barge in question for Pocock; before the work was begun Pocock advanced to Royland some money on account, and as it proceeded he paid him more, to the amount of one hundred and ninety pounds in all, being the whole value of the barge; when it was nearly finished Pocock's name was painted on the stern; Royland becamo a bankrupt, and two days after the barge was completed, and before a commission of bankruptcy had issued, defendant took it on an execution against Royland, and afterwards on receiving an indemnity from Pocock delivered it up to him; and a verdict was rendered for plaintiffs, who sued as the assignees of the bankrupt Royland. Lord Chief Justico Mansfield: "The only effect of the payment is, that the bankrupt was under a contract to finish the barge; that is quite a different thing from a contract of sale; and until the barge was finished, we cannot say it was so far Pocock's property that he could have taken it away. It was not finished at the time when Royland committed the act of bankruptcy; it was finished only two days before the execution." Mr. Justice Heath, in delivering his opinion in the case, says: This is the species of contract which in the civil law is described by the term do ut facias. It comes within the cases which have been held to be executory contracts, and as such not within the statute of frauds, as contracts for the sale of goods. A tradesman often furnishes articles which he is making in pursuance of an order given by one person, and sells them to another. If tho first customer has other goods made for him within the stipulated time, he has no right to complain; he could not bring trover against the purchaser for the goods sold. The painting of the name on the stern in this case makes no difference. If the thing be in existence at the time of the order, the property in it passes by the contract, but not so where the subject is to be made. (1 Taunt. R., 318.) This decision, which is in harmony with the law as held in this State, is, perhaps, partially modified by the subsequent cases decided in the English courts. (Woods v. Russell, 5 Barn. and Ald. R., 942; Carruthers v. Payne, 5 Bing. R. 277; 7 John. R., 473.) In Carruthers v. Payne, a chariot was built to plaintiff's order and paid for by him; when finished in other respects, plaintiff ordered a front seat to be added, but the builder being slow in making this addition,

make and deliver the article called for; and the property does not vest in the party ordering it, until it is delivered or tendered to him.1 Hence a subsequent sale and delivery of the article by the maker to a third person, will vest the property in him. And hence where an order for a specific kind of goods is given, to be selected and sent by the seller, the title does not pass where a different article is sent, until the same is accepted. To convert a verbal order when acted upon, into a sale, the

plaintiff sent for the chariot repeatedly, and the builder promised to deliver it. Plaintiff being afterwards dissatisfied, ordered the chariot to be sold; and while it was, according to the custom of the trade, standing in the builder's warehouse for that purpose, the front seat not having been added, the builder becamo bankrupt, and his assignce seized the chariot; more than three months afterwards, plaintiff commenced this action; and it was held, first, that the plaintiff had sufficient property to maintain trover for the chariot; and secondly that it did not pass to the assignee as a part of the bankrupt's assigned property, (5 Bing. R., 277; seo 1 Keruan R., 35.) Chief Justice Best, in the opinion delivered by him, says: If a case, precisely the same as Mucklow v. Mangles, were to occur again, it might require further consideration; and Mr. Justice Park adds: I do not say that I should agree with the decision in Mucklow v. Mangles, if the case were to occur again.

It is to be observed, however, that the case in which these observations were made, did not involve precisely the same question as that presented in the case here criticised; and in Woods v. Russell, the person for whom the ship was built was not only permitted to register her in his name as his own property, but it was actually built under a superintendent appointed by him (5 Barn. & Ald. R., 945); and he did, also, with the consent of the builder, exercise other acts of ownership over the ship; such as might authorize a jury to find the fact of a delivery for the purpose of passing the title, though they might not be sufficient to show such a delivery as would defeat the builder's lien.

The intent of the parties as declared in the contract, must prevail; and where the legal effect of the contract and payments made under it, can operate to transfer the title in the vessel to the employer as fast as the work goes on, equity certainly favors that construction; and the English courts do recently interpret the provision for payment by installments at successivo stages in the work, as equivalent to an express understanding that on such payments the general property in the vessel shall vest in the employer or purchaser. Woods v. Russell, 5 B. & Ald., 942; Clarke v. Spence, 4 A. & E., 448; Read v. Fairbanks, 13 C. B., 692; Atkinson v. Bell, 8 B. & C., 277, 282; Laidler v. Burlinson, 2 M. & W., 602; Wood v. Bell, 5 E. & B., 772; 6 E. & B., 355; 25 L. J. Q. B., 321. The rule as enforced with us vests the property in the party for whom the ship is built, on its delivery in a finished condition. Andrews v. Durant, 11 N. Y., 35; 14 N. Y., 611; 20 N. Y., 181, 495; 1 Keyes, 463.

1 Comfort v. Kiersted, 26 Barb., 472; Halterlino v. Rice, 62 Barb., 593.

2 Atkinson v. Bell, 8 Barn & Cress., 277; Grafton v. Armitage, 2 C. B., 335; Burt v. Dutcher, 34 N. Y., 493.

3 Ralph v. Stuart, 4 E. D. Smith, 627; Downer v. Thompson, 6 Hill, 208; 2 Hill, 238; Howar 1 v. Hoey, 23 Wend., 350.

goods must be selected or accepted by the purchaser; he must, under the statute of frauds, do some act evincing an intention to accept the goods. Keeping the goods, after a reasonable opportunity to examine them, is evidence of an acceptance.3

The distinction between a present sale of goods or chattels, and an executory agreement to manufacture and deliver a certain kind of merchandise or chattels of a given description, is well understood, but not very sharply defined. The statute of frauds applies to sales exceeding fifty dollars in value; but does not apply to an executory agreement for the manufacture of a chattel or of goods made under an order. It applies to a contract for wheat, to be threshed and delivered; or flour to be ground; or standing trees to be cut and delivered; or timber to be slit and dressed in a particular manner. It is a sale when the work is to be done for the seller, in order to prepare the property for delivery under the contract; and it is an agreement for work and services when the thing or chattel bargained for, is to be made or brought into existence.R

The present form of the statute in England and in some of the States, has been adopted for the purpose of making it apply to executory sales of goods to be made, procured or prepared for delivery; and it applies by judicial interpretation where the contract is such that it will result in the transfer of a chattel."

Under the old statute, still existing in most of our States, contracts for the manufacture of a special kind of goods or wares, or for the construction of chattels, machines or vehicles of a specified character, style or dimensions, are not within the statute; as where a paper-maker agreed to manufacture and deliver so many thousand pounds of book paper, of

Rodgers v. Phillips, 40 N. Y., 519; Maxwell v. Brown, 33 Maine, 93; Frostburg M. Co. v. New Eng. Glass Co., 9 Cush., 115.

2 Caulkins v. Hellman, 47 N. Y., 449.

3 Dutchess Co. v. Harding, 49 N. Y., 321; Konitzky v. Meyer, 49 N. Y., 571.

4 Sewal v. Fitch, 8 Cowen, 215.

Downs v. Ross, 23 Wend., 270.

6 Smith v. N. Y. C. R. R. Co., 4 Abbott Ct. of App. Dec., and 4 Keyes, 180; Smith v. Surman, 9 B. & C., 568.

Cooke v. Millard, 5 Lansing, 243.

Courtright v. Stewart, 19 Barb., 456; Stephens v. Santee, 51 Barb., 532, 545; Webster v. Zicilly, 52 Barb., 482.

Leo v. Griffin, 30 L. J. Q. B., 252; 1 Ellis, B. & S., 272: action by a dentist to recover for two sets of artificial teeth made for a lady-a case clearly not within the original statuto; see Grover v. Buck, 3 M. & S., 178; and Towers v. Osborne, 1 Strange, 506.