1 Part payment must be made at the time the contract is entered into; agreement to pay and subsequent payment axe not enough. Paine v. Fulton, 34 Wis. 83.- K.

There have been, since that time, many cases turning upon this question, and it is impossible to reconcile them all with any acknowledged principle of statutory construction. It must, indeed, be impossible to frame any rules which shall be always applicable without difficulty to this question; but this difficulty *may arise, as remarked by the Supreme Court of Massachusetts,(s) "not so much from any uncertainty in the rule, as from the infinitely various shades of different contracts." From general principles, however, illustrated by recent decisions, we should draw the following rules. A pure executory contract for the sale of goods, wares, or merchandises, is as much within the statute, as a contract of present sale. (t)l A contract for an article not now the seller's, or not existing, and which must therefore be bought or manufactured before it can be delivered, will also be within the statute, if it may be procured by the seller by purchase from any one, or manufactured by himself at his choice, the bargain being, in substance as well as form, only that the seller shall, on a certain day, deliver certain articles to the buyer for a certain price. But if the contract states or implies that the thing is to be made by the seller, and also blends together the price of the thing and compensation for work, labor, skill, and material, so that they cannot be discriminated, it is not a contract of purchase and sale, but a contract of hiring and service, or a bargain by which one party undertakes to labor to deliver corn at a future period, there was also some work to be performed, for it was necessary that the corn should be threshed before the delivery. This perhaps, may seem to be a very nice distinction, but still the work to be performed in threshing, made, though in a small degree, a part of the contract.

(s) In Gardner v. Joy, 9 Met. 177.

(t) Cooper v. Elston, 7 T. R. 14; Bennett v. Hull, 10 Johns. 364; Jackson v. Covert, 5 Wend. 139; Downs v. Ross, 23 Wend. 270; Garbutt v. Watson, 5 B. & Ald. 613; Smith v. Surman, 9 B. & C. 561; Cason v. Cheelv, 6 Ga. 554: Rondeau v. Wyatt, 2 H. Bl. 63.

1 An agreement to exchange is within the statute. Kuhns v. Gates, 92 Ind. 66; Dowling v. McKenney, 124 Mass. 478.

in a certain way for the other party, who is thereupon to pay him certain compensation; and this contract 'is, therefore, not within the statute, (u) And these rules will be found to reconcile

(u) This distinction is well explained and illustrated in Hight v. Ripley, 19 Me. 137. In that case the defendant agreed with the plaintiff " to furnish, as soon as practicable," 1,000 or 1,200 lbs. of malleable hoe shanks, agreeable to patterns left with him; and to furnish a larger amount, if required, at a diminished price. And the court held, that this must be considered as a contract for the manufacture of the articles referred to, and so not within the statute of frauds. Shepley, J., said: "It may be considered as now settled, that the statute of frauds embraces executory as well as executed contracts for the sale of goods. But it does not prevent parties from contracting verbally for the manufacture and delivery of articles. The only difficulty now remaining is, to decide whether the contract be one for the sale, or for the manufacture and delivery of the article. It may provide for the application of labor to materials already existing partially or wholly in the form designed, and that the article improved by the labor shall be transferred from one party to the other. In such cases there may be difficulty in ascertaining the intentions; and the distinction may be nice, whether it be a contract for sale or for manufacture. The decision in the case of Towers v. Osborne, 1 Stra. 506, is esteemed to have been correct, while the reasons for it are rejected as erroneous. The chariot bespoken does not appear to have existed at the time, but to have been manufactured to order. In Garbutt v. Watson, 5 B. & Ald. 613, the contract was ' for the sale of 100 sacks of flour, at 50s. per sack, to be got ready by the plaintiff to ship to the defendant a order, free on board, at Hull, within three weeks/ There was an attempt to exclude it from the statute, because the plaintiffs were millers, and had not the flour then ground and prepared for delivery. But the contract did not provide that they should manufacture the flour; they might have purchased it from others, and have fulfilled all its terms. It was decided to be a contract for the sale of the flour, and within the statute. If the contract be one of sale, it cannot be material whether the article be then in the possession of the seller, or whether he afterward procure or make it. A contract for the manufacture of an article differs from a contract of sale, in this: the person ordering the article to be made is under no obligation to receive as good, or even a better one of the like kind, purchased from another, and not made for him. It is the peculiar skill and labor of the other party, combined with the materials, for which he contracted, and to which he is entitled. Hence it has been said, that if the article exist at the time in the condition in which it is to be delivered, it should be regarded as a contract for sale. In Crookshank v. Burrell, 18 Johns. 58, the contract was, that the defendant should make the wood-work of a wagon for the plaintiff by a certain time; and it was decided not to be a contract for sale. In the case of Mixer v. Howarth, 21 Pick. 205, the contract was, that the plaintiff should finish for the defendant a buggy, then partly made; and it was decided not to be a contract for sale. The contract in this case provides, that the defendants should ' furnish, as soon as practicable, 1,000 or 1,200 lbs. of malleable hoe shanks, agreeably to patterns left with them.' They were to he • delivered at their furnace.' There is a provision that the defendants may immediately receive orders for a larger amount, Bay 2,000 lbs. more than heretofore stated, and that 'the whole amount is (in such case) to be charged at a diminished price' Taking into consideration all the provisions of the contract, there can be little doubt that it was the intention of the parties that the defendants should manufacture the shanks at their furnace, agreeably to certain patterns which had been left with them. There is no evidence in the case tending to prove that the articles were then existing in the form of the pattern. It may be fairly inferred that they were not, but were to be made as soon as practicable. The testimony presented does not, then, prove a contract for the sale of goods, but rather one for the manufacture of certain articles of a prescribed pattern, by order of the plaintiff/' Again, in Gardner v. Joy, 9 Met. 177, it appeared that A asked B what he would take for caudles: B said he would take twenty-one cents per pound; A said he would take one hundred boxes; B said the candles were not manufactured, but he would manufacture and deliver them in the course of the summer. Held, that this was a contract for the sale of goods, within the statute of frauds. And Shaw, C. J., said: " It was essentially a contract of sale. The inquiry was for the price of candles; the quantity, price, and terms of sale were fixed, and the mode in which they should be put up. The only reference to the fact that they were not then made * most of the recent authoritative decisions on this subject We think also that this will be found to be the true meaning and * effect of the statute of 9 Geo. IV. c. 14, in extension of the statute of frauds, (v)1 It is to be noticed, that while some of the sections of the statand ready for delivery was, in regard to the time at which they would be ready for delivery; and the fact that they were to be manufactured was stated as an indication of the time of delivery, which was otherwise left uncertain." And see Mixer v. Howarth, 21 Pick. 205; Spencer v. Cone, 1 Met. 283; Lamb v. Crafts, 12 id. 353; Waterman v. Meigs, 4 Cash. 497; Watts v. Friend, 10 B. & C. 446; Cason v. Cheely, 6 Ga. 554; Bird v. Mnhlinbrink, 1 Rich. 199; Hardell v. Mc-Clnre, I Chand. 271. Until quite recently, however, both in this country and in England, it was held that all contracts for the sale of articles not then existing in the state in which they were to be delivered, were out of the statute. See Rondeau v. Wyatt, 2 H. B. 63, cited supra; Groves v. Buck, 3 M. & S. 178;