GOODS, WARES, AND MERCHANDISE. A phrase used in the Statute of Frauds. Fix tures do not come within it; 1 Cr. M. & R. 275. Growing crops of potatoes, corn, tur nips, and other annual crops, are within it ; 4 M. & W. 347; contra, 2 Taunt. 38. See Addison, Contr. 31; Blackb. Sales §§ 4, 5 ; Craddock v. Riddlesbarger, 2 Dana (Ky.) 206; Stambaugh v. Yeates, 2 Rawle (Pa.) 161; 10 Ad. & E. 753. As to when growing crops are part of the realty and When per sonal property, see 1 Washb. R. P. 3. A con tract for the sale of apples, peaches, and blackberries which might be raised during certain years, are chattels personal and not within the statute', Smock v. Smock, 37 Mo. App. 56, Promissory notes and shares in an incorporated company, and, in some cases, Money and bank-notes, have been held within it ; see 2 Pars. Contr. 330 ; and so have a bond and mortgage; Greenwood v. Law, 55 N. J. L. 168, 26 Atl. 134, 19 L. R. A. 688; Bernhardt v. Walls, 29 Mo. App. 206. With in the meaning of the tariff laws "goods, wares and merchandise" do not include a quantity of waste material ; Shaw v. Dix, 72 Fed. 166. Fruit, imported into this coun try, which decays on the voyage, was held not goods, wares and merchandise; Lawder v. Stone, 187 U. S. 281, 23 Sup. Ct. 79, 47 L. Ed. 178; the term "merchandise" as used in the revised statutes of the United States in cludes goods, wares, and chattels of every description capable of being imported; It. S. § 2766. See Pratt v. Miller, 109 Mo. 78, 18 S. W. 965, 32 Am. St. Rep. 656.
The cases which have considered that the rule for distinguishing goods, wares and merchandise from work and labor under the 17th section of statute of frauds have been grouped under three rules, under one of which usually any case may be classified.
The English rule was that, if the transaction results in the sale of a chattel, the contract is within the statute. The New York rule is that, if the subject matter was in existence at the time of the contract, the transaction is within the statute, otherwise not ; and the Massachusetts rule is that, if the article be such as the manufacturer makes in the or dinary course of his business, the contract is within the statute, otherwise not.
The English rule was applied in 1 B. & S. 272, in which a set of artificial teeth manu factured by a dentist was declared to be mer chandise. The New York rule was laid down in Crookshank v. Burrell, 18 Johns. (N. Y.) 58, 9 Am. Dec. 187, and Parsons v. Loucks, 48 N. Y. 17, 8 Am. Rep. 517. The Massachu setts rule was laid down in Mixer v. How arth, 21' Pick. (Mass.) 205, 32 Am. Dec. 256.
A more recent test has been laid down in some cases to the effect that, if the article when manufactured is fit for the general market, it is merchandise ; otherwise, if it is of such peculiar construction as to be of value only to the particular person ordering it ; Puget Sound Mach. Depot v. Rigby, 13 Wash. 264, 43 Pac. 39 ; °mail v. Hagar, 3 N. Mex. 568, 9 Pac. 363; Pratt v. Miller, 109 Mo. 78, 18 S. W. 965, 32 Am. St. Rep. 656.