Flynn

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 *671 not 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…