Flynn v. Dougherty

The only question involved in this appeal is, whether the contract of the plaintiff, “to cut, furnish, and deliver" to defendant “ the stone-work of the asylum to be built at Agnew Station, according to the plans and specifications of Mr. Jacob Leuzen and Son, architects," is within the statute of frauds. (Civ. Code, sec. 1739.) There is no doubt that it is within the provisions of the statute, unless excepted therefrom by section 1740 of the Civil Code, which is as follows: “An agreement to manufacture a thing, from materials furnished by the manufacturer or by another person, is not within the provisions of the last section."

Pile plaintiff testified that “if the stone had been cut according to his bid and the specifications, and had not been used in the construction of the asylum, it would *671not have been available for other purposes, or have been salable in the general market.”

On the subject of contracts of sale and contracts for labor, there is much conflict of decision; but the weight of authority in this country supports the proposition, that where the seller is to furnish materials, and fashion them according tc specifications furnished by the purchaser, or according to some model selected, and when, without the special contract entered into by the parties, the thing furnished would never have been put in the particular shape or condition in which it was furnished, then the contract is essentially one for labor, and is not within the statute of frauds. The subject is carefully treated and the authorities fully reviewed in 1 Reed on Statute of Frauds, c. 9.

The evidence in the case before us shows that the work which was to be performed by the plaintiff would have left the material unfit for the general market. The contract is one for labor; work and labor were the main things. The material upon which the work and labor were to be done was simply the incident. The stone to be furnished xvas of no value to the defendant until shaped and carved according to the plans and specifications of the architect. Upon the authorities referred to above, we think the court erred in granting the defendant’s motion for a nonsuit.

The only grounds stated by the defendant in his motion for a nonsuit were, that the contract was one for the sale of goods and chattels, “ and that there was no note or memorandum thereof signed by the defendants, nor any acceptance or receipt of the goods, or any part thereof, nor any payment of purchase-money, or any part thereof, as required by the provisions of section 1624, subdivision 4, of the Civil Code; and on the further ground that plaintiff has failed to show that he has sustained any damage in any sum whatever.” The rule is well settled here that a nonsuit cannot stand unless the ground upon which it is supported was called to the *672attention of the court and the plaintiffs at the time the motion was made.

Judgment and order reversed, and cause remanded for a new trial.

Sharpstein, J., De Haven, J., Garoutte, J., McFarland, J., and Beatty, C. J., concurred.

Mr. Justice Harrison, being disqualified, did not participate in the foregoing opinion.