
    Silas Penniman versus Charles Hartshorn and Another.
    A contract for the sale of merchandise was holden to he binding on the parrv signing a memorandum thereof; although he had no counterpart thereof; ai though the signature of such party was above and not below the body of the memorandum; and although it did not specify the weight of the merchandise contracted to he sold.
    Such a contract to sell, without a delivery, does not pass the property.
    The declaration, which was in assumpsit, contained nine counts, all grounded on a contract, on the part of the defendants, to purchase of the plaintiff a quantity of cotton.
    The cause was tried on the general issue at the last November term, before the Chief Justice.
    
    * At the trial, the plaintiff relied upon the deposition of one Alexander Jones, to which was annexed an original memorandum in these words and figures, namely :
    
      “ Hartshorn and Arnold, of Providence.
    
    December 13, ) I sold to the above gentlemen 39 bales upland 1813. ) cotton, at 40 cents, — 60 days for approved
    security. Silas Pekniman.
    
      Bill to be made out in the names of Hartshorn fy Arnold,
    
    . Weeden Billings, and Andrew Taylor.”
    
    
      Jones testified, that the words of the said memorandum, printed in italics, were in the handwriting of the defendant, Hartshorn, and the residue in the handwriting of the plaintiff. No part of the cotton was delivered, and no money was paid.
    To prove the state of the memorandum on the day of its date, the plaintiff relied on the testimony of one Hopkins; which was that he was a clerk in the counting-room of the plaintiff, and on that day saw in his hands, at a distance, a paper which had writing on it; that the witness did not read the writing ; but that the plaintiff read it in the hearing of the witness and of the defendant Hartshorn, and the witness believed the words of the above memorandum were the same which were then read by the plaintiff; that the cotton lay, part of it in the plaintiff’s store, and part of it in that of a Mr. Hill; that it was not weighed on that day; that it is not the usage in Boston to weigh cotton before the sale, but to sell by invoice ; that the invoices of the thirty-nine bales were not, to the knowledge of the witness, shown to Hartshorn; nor was the invoice weight thereof stated to him. Other witnesses testified to the same effect as to the usage.
    Of the said bales, thirty-eight were sold at public auction, b) order of the plaintiff, on the 1st day of March, 1814 ; and the remaining one was attached in this suit as * the property of the defendants. It was in evidence, that bales of upland cotton varied in quantity.
    The defendants objected to the admission of testimony as to usage ; of any testimony not in writing on the 13th of December, and signed by the parties or their agents, to show either the weight of the cotton, or what particular bales were then in the contemplation of the parties. They also objected, that, under the statute of frauds, the evidence of Hopkins, to prove what on the said day were the contents of the said memorandum, was improper to go to the jury.
    The points in defence were, that, on the 13th of December, no bargain was made ; that, if made, it was not binding, from the insufficiency of the memorandum ; that it was void for fraud ; and, if not, that it was subsequently rescinded by mutual consent.
    The jury were instructed, that, if they were satisfied that a bargain was made on the thirteenth of December ; that the contents of the memorandum were the same then as at the trial; that there was no fraud ; and that the bargain, if made, had not been subsequently rescinded ; they should find for the plaintiff; and the questions of law would be reserved; — that, as to the damages, the measure might be taken from the sales of the first of March, if those sales were fair ; — that, although one of the bales had been attached in this suit as the defendant’s property, that circumstance did not affect the law upon the question ; that the property in the cotton was not to be considered as shifted by what passed on the thirteenth of De comber ; and, supposing the plaintiff to have made out his case, the purchase was still not absolute ; but the action was brought for not completing the purchase. The one bale was, therefore, to be considered as in the plaintiff’s possession, and he to be charged with it at the rate the others sold at on the first of March, should they return a verdict for the plaintiff.
    The jury returned a verdict for the plaintiff, for a sum * equal to the difference between the price agreed on and the actual sales.
    Townsend, for the defendants,
    contended, that the contract proved was void by the statute of frauds, as not showing who are the contracting parties, nor the terms of the contract, nor affording mutual remedies. 
    
    The defendants were entitled to a new trial for the admission of improper evidence, which went to vary the written contract. The ambiguity, if any, was patent, and therefore to be explained only by the writing itself. 
    
    A new trial should be had, also, for the misdirection of the judge as to the effect of the evidence ;  and as to the nature of the action, that it was brought for not completing the purchase, whereas it was in fact for the price of the cotton. 
    
    Some defects in the declaration were also suggested, as the foundation of a motion in arrest of judgment ; but this point was not much urged.
    
      Welsh and Cooke, for the plaintiff.
    
      
       1 New Rep. 252. —15 East, 103. —7 East, 569.-3 Johns. 419. — Pothier, No 308. — 2 Camp. 240. — 6 East, 625. — Roberts on Frauds, 123.
    
    
      
       11 Mass Rep. 27.— 12 East. 6 —3 Bro. Ch. Cas 311.—1 Ves. Jun. 326.
    
    
      
       1 H. Black. 20. — 2 H Black. 68—2 Bos. & Pul. 238.-5 Mass. Rep. 219
    
    
      
       1 Esp. Rep. 101.
    
   Parker, C. J.,

delivered the opinion of the Court. This being a bargain for the sale of goods of more than £ 10 in value, and no earnest money paid, nor any part of the goods delivered, it is obvious, that, unless there was a memorandum in writing signed by the defendants, or for them by some person duly authorized, the contract cannot he enforced by action.

The second section of the statute of 1788, c. 16, provides, 1 ‘ that no contract for the sale of any goods, &c., for the price of ten pounds or more, shall be allowed to be good, except the purchaser shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment ; or, that some note or memorandum in writing of the said bargain be ' made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.”

A memorandum, supposed to be within the requisition * of this statute, was produced at the trial ; and being objected to as insufficient, the question as to • its sufficiency was reserved for the consideration of the whole Court. Divers objections have now been made to it. First, that it is not signed in the manner intended by the statute ; the names of the defendants being above, and not below, the body of the paper.

But we think this a slight objection ; as it is well known that such a signing has been held good in instruments of much more importance and solemnity than the one before us.

It was further objected, that the memorandum was not sufficient, because it did not specify the weight of the bales of cotton, nor refer to any invoice, by which the weight could be ascertained.

But we think it sufficiently particular. The object of the statute being, that the bargain shall be proved by writing, and not by parol; in order that purchasers shall not be caught up on loose conversation, or that the proof of the contract should not rest upon the recollection or integrity of witnesses. Bales of cotton are nearly of the same weight and size ; and, where the weight is left undetermined by the contract, it must be presumed that the ordinary average weight was intended. The case of Egerton vs. Matthews & al., which was cited by the counsel for the plaintiff, is exactly parallel with this ; and the distinction there taken, between a memorandum necessary to enforce a bargain for the sale of goods, and an agreement which is required to oblige one to pay the debt of another, will hold good here.

It is also said, that the memorandum is defective, because it does not appear that the obligation was mutual, no counterpart being signed by the vendor, and no legal means of enforcing the bargain against him existing.

But this objection has no weight. The bargain was undoubtedly mutual, although the parties might not have been equally vigilant in obtaining the legal written * evidence to prove it. The defendants were the party to be charged by the memorandum, and it is signed by them. They should have taken care to have procured one from the other party. Indeed, it cannot be ascertained from the facts reported, that they have not such a memorandum. In the case before referred to, it was settled, that the signature of one of the parties was sufficient to charge him.

As to the parol evidence supposed to have been improperly admitted to help out the memorandum, the case shows that it was received to rebut the suggestion, that the paper produced on the trial was not the same which was read to one of the defendants, when the bargain was made ; but had been altered in an essential part. Surely this evidence, to prove the identity of the memorandum, was properly admitted.

The charge of the judge has also been complained of; because he stated that the property was not changed by the contract.

But it is very clear, that a mere contract to sell, without a delivery either actual or symbolical, does not pass the property ; and that a subsequent sale and delivery to another person would have vested the property in him. There certainly is a distinction between a sale and a contract for sale ; and it is upon this distinction that the statute proceeds in requiring written evidence to substantiate such a contract.

Upon the whole, the jury having passed upon the question of fraud, and upon that of the contract being rescinded; and the memorandum being in our opinion such as the statute requires, there is.no reason why judgment should not be entered upon the verdict.

Judgment according to the verdict.

[Ogilvie vs. Foljambe, 3 Mer. 53. —2 Kent's Commentaries, 511, and note d. — Ed.] 
      
       6 East, 307.
     