4 a specified quality; or where a pump was ordered to be made in a peculiar way; 2 or where a certain quantity of malleable hoe shanks were ordered, to be made according to patterns left with the contractor; 3 or where a monument existing in the form of separate blocks of marble, was ordered to be finished, lettered and set up; or where a chariot or carriage is ordered of a given kind; 5 or where an engine or boiler is ordered, to be constructed for a given purpose. In England and in some of our States, an order given to a manufacturer for a certain quantity of goods which he is habitually manufacturing and keeps on hand to supply orders, is treated as creating a contract of sale; with this qualification, that where the order calls for the manufacturer's own labor and skill in the production of the goods, or for a peculiar article unfitted for the general market, or for a large quantity of an article having special adaptations, it is to be treated as creating a contract for work and labor. 9 § 413. An executory contract for the sale of specific personal property is within the statute of frauds; and it does not pass the title.10 Ordinarily the title passes on the performance or fulfillment of the contract; that is to say, the title passes by force of the contract as soon as the terms of the sale are complied with. A valid present sale on a credit, passes the title at once;" and a like sale for cash passes the title on payment of the purchase money.12 The title does not pass on a sale of goods, where something remains to be done by the seller to ascertain their identity, quantity or quality, or to put them in proper condition for delivery: the goods sold must be designated, ascertained, identified;13 1 Parsons v. Loucks, 48 N. Y., 17; 51 N. Y., 652. 2 Parker v. Schenck, 28 Barb., 38. 3 Hight v. Ripley, 19 Maine, 139. 4 Mead v. Case, 33 Barb., 202. 5 Towers v. Osborne, 1 Strange, 503; Mixer v. Howell, 21 Pick., 206. 6 See Neaffic v. Hart, 4 Lansing, 4, and cases there cited, for the nature of the contract. 7 Gardner v. Joy, Met., 179; Atwater v. Hough, 29 Conn., 503; Lamb v. Crofts, 12 Met., 356. 8 Passaic Manuf. Co. v. Hoffman, 3 Daly, 495; Allen v. Jarvis, 20 Conn., 38. 9 Jackson v. Covert, 5 Wend., 139; Rondeau v. Wyatt, 2 H. Black, 63; Cooper v. Elston, 7 Term R., 14. 10 Burt v. Dutcher, 34 N. Y., 493. 11 Dox v. Dey, 3 Wend., 356. 12 Olyphant v. Baker, 5 Denio, 379; Lansing v. Turner, 2 John., 13; Terry v. Wheeler, 25 N. Y., 520; Curtis v. Prinderville, 53 Barb., 186. 13 Field v. Moore, Hill & Denio, 418; Rapelye v. Mackie, 6 Cowen, 250; Stevens v. Eno, 10 Barb., 95. selected or weighed. But even here the intent of the parties must prévail; and the title will pass without any separation of the goods sold from a larger mass, where the price is paid and the transaction evinces an intention to pass the title.2 § 414. Title under a Bailment for Services. A delivery of materials to be manufactured and returned does not operate upon the title ; but a delivery of goods or materials in exchange for other things, does transfer the title. The owner of some wheat delivers it to a miller, who receives and places it in a common bin with other wheat purchased by him on his own account; the delivery made on an agreement by the miller that for every four bushels and fifty-five pounds of wheat received, he will deliver to the owner of the wheat one barrel of fine flour warranted to bear inspection, amounts to an exchange or sale of the wheat for a price to be paid in flour. The same rule holds where the miller agrees to take so much wheat and give so much flour therefor, without any promise that the flour shall be manufactured from the same wheat. But an agreement to take wheat and manufacture and return it in the form of flour, is a contract of another kind; it is a bailment.5 It is a sale when the receiver of the material is only bound to return a manufactured article of equal value; and it is a bailment when the same thing is to be returned in its new or manufactured form. § 415. Our courts have had frequent occasion to draw this line of discrimination between a sale and a bailment. It has been frequently done with reference to contracts for domestic animals, cattle or sheep used as stock upon a farm. A delivery on hire, on an agreement that the same chattels are to be returned at a future day, does not pass tho title; while a delivery on an agreement that the same or like cattlo or sheep of equal value shall be delivered to the owner amounts to a sale, because it gives the lessee the option of treating it as a sale; so that pending the agreement the original owner cannot assert any title to the chattels covered by the contract. The terms of the letting control the question of title: if the hirer can satisfy the terms of his agree 1 Keeler v. Vandevere, 5 Lans., 313; Joyce v. Adams, 8 N. Y., 291; see Howe v. Carpenter, 53 Barb., 382; Russell v. Nicholl, 3 Wend., 112; Fitch & Lozeo v. Beach, 15 Wend., 221; Ward v. Shaw, 7 Wend., 404; Outwater v. Dodge, 7 2 Kimberly v. Patchin, 19 N. Y., 330; Russell v. Carrington, 42 N. Y., 118. 3 Smith v. Clark, 21 Wend., 83. Norton v. Woodruff, 2 N. Y.,153. 6 Foster v. Pettibone, 7 N. Y., 433. ment by returning at the end of the term the same number of cattle or sheep of equal value, the contract operates as a sale. And as such it must be made in writing, where the value of the property exceeds fifty dollars, or where the contract is not to be performed within one year.2 § 416. A delivery of materials to be manufactured on shares creates a bailment, and on a fulfillment of the contract operates as a transfer of the share coming to the bailee. The bailee carns his share by performing the contract on his part, and he remains a mere bailee until he fulfills the contract. The relation of the parties is similar to that which arises where one man cultivates the land of another on an agreement that the crops raised shall be divided between them in certain proportions; the parties become tenants in common of the crops,5 with a right to have the same divided according to the contract. The delivery of milk to a cheese factory to be converted into and returned in the form of cheese, is a bailment where the factory is owned and operated by a party on his own account, as a distinct business; and it is a special contract, where the factory is operated on account of the persons delivering their milk to be manufactured, each person to receive his proportion of the cheese. Before any division is made the parties own the cheese as tenants in common; and though not partners, they are jointly liable on a contract of sale made by their agent or committee." A tenancy in common of personal property may, it seems, arise from accident or casualty; as where firewood belonging to different parties is swept away and scattered by a freshet, and afterwards gathered by one of them. It more often arises from the act or contract of the parties; as where they make a joint purchase of goods, or where one delivers to another cattle or swine to fatten on shares. The relation being 1 Wilson v. Finney, 13 John. R., 358; Carpenter v. Griffin, 9 Paige Ch., 310. 2 Bartlett v. Wheeler, 44 Barb., 162; Wier v. Hill, 2 Lansing, 278, a thriftless bargain; Lockwood v. Barnes, 3 Hill, 123, showing some want of foresight. 3 Pierce v. Schenck, 3 Hill, 28; post § 447. Barker v. Roberts, 8 Greenl., 101; Rightmyer v. Raymond, 12 Wend., 51; Tripp v. Riley, 15 Barb., 333: Hyde v. Cookson, 21 Barb., 92. In this case in a suit by the owner for a conversion after considerable work had been done in the process of manufacture, the defendant the bailee was allowed to diminish the recovery pro tanto. Channon v. Lusk, 2 Lansing, 211, 216. 6 Faber v. Shattuck, 22 Barb., 568. 7 Hawley v. Keeler, 62 Barb., 231; Wilber v. Sisson, 53 Barb., 258, 264: The factory may now be organized as a corporation. Durst v. Burton, 2 Lansing, 8 Moore v. Erie Railway Co., 7 Lansing, 39. once established, each party has the usual remedy for a violation of his right of property. § 417. Our decisions furnish the most reliable illustrations of the rules of law, as well as the most apt and felicitous. The owner of a quantity of black salts, delivers them to a manufacturer on an agreement that he will work them into pearlashes and redeliver them to the owner in casks ready for the market at the manufactory; the salts are kept separate from the others, and the substance or chemical properties of the alkali are not materially changed in the process of the manufacture; when the work is finished, the casks containing the pearlashes, are rolled into the highway, separated and covered as the property of the person furnishing the salts; the title here is not changed, and the delivery into the street is tantamount to a delivery to the owner. There is nothing in the process to work a change in the title; as there is not in the process of converting wood into coal; or timber into boards; or grain into whisky.5 The delivery of hides to be tanned and manufactured into leather, and afterward returned and sold, creates a bailment; even where the manufacturer is entitled to the proceeds of the sale, after deducting the cost of the hides, interest, commissions and other expenses. The right of property remains unchanged. The rule is the same where cotton cloth is delivered to calico printers, to be printed and returned, and sold in the market; the printers to be paid the proceeds of the sale, after deducting the cost of the cloth and commissions. The transaction does not affect the title; and where it is part of the agreement that the manufactured article shall be returned and sold by the owner, the bailee does not acquire any lien upon the property. § 418. An existing state of things is presumed to continue; and a right of property once acquired, remains until it is transferred. Hence under a contract to make or manufacture or furnish goods, the title remains in the owner unless it is transferred by the legal effect of the agreement. Sheldon v. Skinner, 4 Wend., 525; Fobes v. Shattuck, 22 Barb., 568; Now. len v. Colt, 6 Hill, 461. 2 Babcock v. Gill, 10 John. R., 287. 3 Curtis v. Groat, 6 John., 168. 4 Baker v. Whceler, 8 Wend., 505. Westcott v. Thompson, 18 N. Y., 363, where ale was sold and delivered in barrels, the barrels to be returned, or paid for at $2 each, in case any were not returned. 1 Duer, 53; and see Peck v. Armstrong, 38 Barb., 215. Where the owner of a quantity of cotton yarn delivered it to a manufacturer at the price of sixty-five cents per pound, to be paid for in plaids at fifteen cents per yard, the receiver to use the cotton yarn in making the warp of the plaids, and to use for the filling other yarn of as good a quality; it was held that the title passed; that the transaction amounted to a sale of the yarn at a specified price, to be paid for in plaids at a specified price. The case lies hard by the line which separates a sale from a bailment; for it is conceded by the judge delivering the opinion, that the title would not have passed if the delivery had been on an agreement that the receiver should find the filling and manufacture the yarn into plaids on their joint account, the cloth to be divided according to their respective interests in the materials. And it has been adjudged that the title does not pass, where rags are delivered to a manufacturer at a certain price, to be made into paper and returned at a certain price; the paper being actually made according to the contract, out of the identical rags delivered. The mode adopted in the contract to fix the measure of compensation to be paid for the services, does not affect the title. A delivery for manufacture is a bailment, unless the legal effect or natural operation of the contract works a transfer of the property.a § 419. Chattels and things delivered to an artisan or mechanic for repairs, remain the owner's property, without regard to the value of the work or materials employed in the process of repair, and without regard to the relation which the expenses of the repairs bear to the original value of the chattel. Thus, where the owner of an old wagon left it with a blacksmith who was owing him, to be repaired on account of the debt, and the blacksmith took it to pieces, purchased on his own account entirely new wood-work, with the exception of the tongue and evener, ironed it, and had it painted at his own expense, it was held, that the title still remained in the original owner.5 § 420. Bailee's Right of Property and Lien. The bailee for hire of labor and services has an interest or special property in the chattels upon which his labor and services are performed. An artisan has a lien upon the article manufactured by him until he is paid for his labor, or parts with the possession pursuant to the terms of his agreement; so 1 Buffum v. Merry, 3 Mason, 473. 2 Eaton v. Lynde, 15 Mass., 242. 3 King v. Humphreys, 10 Penn. St., 217. Barber v. Roberts, 8 Maine, 8 Greenl., 101; Brown v. Hitchcock, 28 Vt., 452; Mallory v. Willis, 4 N. Y. (Comst.), 76. Gregory v. Stryker, 2 Denio, 628. 62 Denio R., 628. |