majority">Shaw C. J.

delivered the opinion of the Court. The first question is, whether the amendment was rightly allowed. The original count was for a carriage sold and delivered, with counts for labor and materials, &c. And in the specification the plaintiff claimed the price of the carriage. The new count was upon an agreement by the defendant, to take and pay for a carriage to be built by his order and request.

*207The Court are of opinion that these were for the same substantive cause of action, and that the amendment was admissible and rightly allowed. And in a similar case recently decided in England, Bay ley J. stated that in his opinion the plaintiff could not recover as for goods sold, because the property had not passed ; but he also expressed his opinion, that on payment of costs, the nonsuit ought to be set aside, and the plaintiff allowed to amend by adding counts on the agreement and for not accepting the goods. Atkinson v. Bell, 8 Barn. & Cressw. 277.

But the main question is, whether this contract for the sale of the carriage was within the statute of frauds and so void, if not proved by a note or memorandum in writing. Revised Stat. c. 74, § 4.

It is very clear, we think, that by this contract no property passed to the defendant. The carriage contemplated to be sold by the plaintiff to the defendant, did not then exist. It was to be constructed from materials, partly wrought indeed, but not put together. It was therefore essentially an agreement by the defendant with the plaintiff, to build a carriage for him, and on his part to take it when finished and pay for it, at an agreed or at the reasonable value. This is a valid contract and made on a good consideration, and therefore binding on the defendant.- But it was not a contract of sale, within the meaning of the statute of frauds, and therefore need not be proved by a note in writing

When the contract is a contract of sale, either of an article then existing, or of articles which the vendor usually has for sale in the course of his business, the statute applies to the contract, as well where it is to be executed at a future time, as where it is to be executed immediately. Cooper v. Elston, 7 T. R. 14 ; Sewall v. Fitch, 8 Cowen, 215. But where it is an agreement with a workman, to put materials together and construct an article for the employer, whether at an agreed price or not, though in common parlance it may be called a purchase and sale of the article, to be completed in futuro, it s not a sale until an actual or constructive delivery and acceptance ; and the remedy for not accepting is on the agreement.

Judgment on the verdict.

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