
    Damon versus Osborn.
    Usder a contract of sale which was void by the statute of frauds the defendant was >o have of the plaintiff 12,000 bricks at 4 dollars a thousand, to be received by the •lefendant at the plaintiff's kiln within one month. After the month had expired, the defendant took away 800, and told the plaintiff's agent who delivered them, that he would take away the rest of the 12,000 the next week 5 to which the agent assented. The defendant, however, never called for them, nor did the plaintiff separate them from the rest of the kiln. Held, that an action lay for the price of the 12,000, on the ground that here was a new contract which was sufficiently certain as to quantity and price by reference to the former one, and not within the statute.
    This was an action of assumpsit to recover the price of 12,000 bricks bargained and sold by the plaintiff to the defendant.
    At the trial in the Court of Common Pleas, in September term 1822, before Williams J., the following facts were proved. By a contract made between the parties in the year 1821, the defendant was to have of the plaintiff 12,000 bricks at 4 dollars per thousand, to be received by the defendant at the plaintiff’s brick-yard within one month from the time when the bargain was made. From the making the bargain until the time of trial, the plaintiff had at his brick-yard more than 40,000 bricks, and had an agent there ready to deliver the 12,000 bricks to the defendant whenever he should call for them. The defendant did not call for any of them within the month,but called some days after and received 800 of the bricks so btirgained for, and assigned as a reason for not having called within the month, that he had been in a hurry; and he then told the plaintiff’s agent that he would take the residue of the 12,000 the next week. This residue was not separated by the plaintiff from the rest of the kiln, but h¡s agent was ready to deliver the bricks ; and would have delivered them if the defendant had called for them. They were never received by the defendant, but still remained in the plaintiff’s kiln.
    The defendant brought into court a sum of money sufficient to pay for the 800 bricks which he had received.
    Upon this evidence the judge instructed the jury, that the plaintiff was not entitled to recover, in an action for goods bargained and sold, and the jury accordingly found a verdict for the defendant. The plaintiff filed his exceptions to this instruction.
    
      C. Willard, for the plaintiff, now contended,
    that the defendant having failed to call and receive the bricks within the time agreed on, the plaintiff had a right in this form of action to recover the' price, xvithout any actual delivery; that the property in the article was vested in the vendee, and that in the price in the vendor. 2 Bl. Comm. 447, 448 ; Noy’s Max. ch. 42. When the bargain and sale is complete, and the vendee refuses to take away or accept the goods, the vendor may recover the price by an action of indebitatus assumpsit for goods bargained and sold. 2 Comyn on Contr. 210, 225, 230 ; Mertens v. Adcock, 4 Esp. 251 ; Heron v. Granger, 5 Esp. 271; Dunmore v. Taylor, Peake, 41; Kymer v. Suwercropp, 1 Campb. 109. If one sell me any thing for money, and the same thing is to be delivered to me at a day certain, and a day is set for the payment of the money, there is a gooa bargain and sale to alter the property thereof, and I may have an action for the thing, and the seller, for his money. Shep. Touch. 224 2 Comyn on Contr. 210 ; Robbins v. Luce, 4 Mass. Rep. 475.
    But if a delivery was necessary, a sufficient delivery has been made in this case; a delivery of part of the goods sold by an entire contract being considered in law as a delivery of the whole, so far as regards the consummation of the contract. Whitaker on Lien, 145, 146, 180, 181, 182 ; 2 Bl. Comm. 447, 448 ; Slubey v. Heyward, 2 H. Bl. 504 ; Hammond v. Anderson, 4 B. & P. 69 ; Sands v. Taylor, 5 Johns. Rep. 395. So a constructive or symbolical delivery is sufficient. Cooper v. Elston, 7 D. & E. 14 ; Chaplin v. Rogers, 1 East, 192 ; Wilkes v. Ferris, 5 Johns. Rep. 335.
    No inference favorable to the defendant can be drawn from the cases in which courts have decided what delivery is necessary to defeat the vendor’s lien, or his right of stoppage in transitu. Neither of those rights is inconsistent with the existence of the contract, but both seem to result from it. Whitaker on Lien, 150, 151 ; Snee v. Prescot, 1 Atk. 245. The vendor may exercise his right of lien, and while he retains the possession of the goods sold may maintain an action for goods bargained and sold, to recover the price. Dunmore v. Taylor, Peake, 41. So of stoppage in transitu. Kymer v. Suwercropp, 1 Campb. 109.
    The circumstance that the bricks contracted for were not separated from the rest of the kiln can make no difference. The authorities are numerous and full, to show that the contract is consummate, when nothing further remains to be done by the vendor to ascertain the quantity to be delivered, or the amount of price to be paid ; both of which were fixed here by the contract. In Whitehouse v. Frost, 12 East, 612, a sale of 10 tons of oil was held to vest the same in the vendee, the price having been settled, although at the time of the sale and afterwards the 10 tons were with 30 other tons in a cistern in the vendor’s possession. It was through the defendant’s default that the bricks were not separated, of which he can take no advantage. Should he call for them, they will be delivered to him ; or if not, he will have his remedy by an action of trover. Jackson v Anderson, 4 Taunt. 24 ; Mertens v. Adcock, 4 Esp. 251.
    
      Where the terms of a special agreement have been so fai performed, that nothing remains but a mere duty to pay money, a general count is sufficient. It is not necessary to declare on a special agreement for the sale of goods, after the time of payment is past. While the agreement remains ex-ecutory, it must be declared on, but it need not be after it is executed. 5 Esp. 271 ; Peake’s Cas. 41 ; 1 Chit. PI. 339 ; Bull. N. P. 139 ; Felton v. Dickinson, 10 Mass. Rep. 288 ; Brooke v. White, 4 B. & P. 330 ; Poulter v. Killingbeck, 1 B. & P. 397 ; Mussen v. Price, 4 East, 147 ; Alcorn v. Westbrook, 1 Wils. 115.
    
      Smith, for the defendant,
    contended that the plaintiff could not recover for the residue of the bricks, (11,200,) because of St. 1788, c. 16, § 2, of frauds. By recent decisions it is settled that executory contracts are within the statute. 1 Comym on Contr. 93 ; Rondeau v. Wyatt, 2 H. Bl. 63 ; Chaplin v. Rogers, 1 East, 192. The delivery of the 800 bricks aft™'wards did not make valid a contract which was void in its creatian. Cockshott v. Bennett, 2 D. & E. 763 ; Smith v. Bromley, Doug. 696, note. For these 800 the defendant is liable upon a quantum valebant.
    
    But if the contract is not void by the statute, the plaintiff has not done all that it was incumbent on him to do, in order to vest the property of the bricks in the defendant. After the month had expired, he should have separated the bricks from the rest of the kiln and have given notice to the defendant that they were ready for him. Earnest only binds the bargain, but does not alter the property in the goods ; and taki i,g the 800 bricks at the time of the bargain would have had no greater effect in this respect than earnest. Langford v. Tyler, 1 Salk. 113 ; S. C. 6 Mod. 162. In the cases cited for the plaintiff, in which the property was held to be changed, it will probably be found that nothing remained to be done by the party seeking a remedy. If an earthquake had destroyed the whole kiln, after the 800 bricks were taken away, it wou.a have been the seller’s loss. He was to count them out to the defendant, when the defendant should call to take them. If the plaintiff had disposed of the 11,200 to another person, the defendant could not have maintained an action of trover 
      Hanson v. Meyer, 6 East, 614 ; Rugg v. Minett, 11 East, 210 ; Zagury v. Furnell, 2 Campb. 240 ; M'Donald v. Hewett, 15 Johns. Rep. 349 ; Johnson v. Smith, Anthon’s N. P. Cas. 60, note a ; Smith v. Mason, ibid. 165, note a ; Palmer v. Hand, 13 Johns. Rep. 434.
    
      Willard, in reply.
    The receiving of the 800 bricks brings the case within one of the exceptions in the statute of frauds. The defendant may be said to have thereby ratified the contract, and it is too late to say that there was no contract. In Salkeld no time was fixed for the execution of the contract, and in such case, before the vendor can sell the goods again, he must request the vendee to pay for them and take them away. But where the time and place are fixed, the defendant is not to take advantage of his own default in not coming to take the goods.
   The cause was argued at October term 1822, and now at this term the opinion of the Court was delivered by

Putnam J.

The defendant objects that the plaintiff’s case is within the statute of frauds, because the value of the goods contracted for exceeded £10, and there was no earnest paid, no contract in writing, and no part of the goods were delivered at the time of the sale. To this the plaintiff replies, that the defendant accepted a part of the goods sold, and so took the contract out of the operation of the statute. That would have been the effect of a receipt of a part, if it had been done in a reasonable time, perhaps within any time of the month within which the defendant was to have taken the whole away. In the case of Cooper v. Elston, 7 D. & E. 14, the court held that a sample delivered two days after the contract was not good, because the sample was no part of the goods sold ; seeming to admit, that if it had been, the delivery after the sale would have been sufficient. In the case at bar, the delivery of part was not until after the expiration of the month, within which time the contract was to have been completed. If the case stopped here, we should be of the opinion that the plaintiff could not recover.

But it appears that the parties made a new agreement; for the defendant, some days after the expiration of the month, went to the plaintiff’s brick-kiln, and made an apoh gy to the plaintiff’s agent, who was there, for not taking away the bricks within the month, and agreed to take 800 then and to take the rest in the next week. That was assented to by the plaintiff’s agent, who accordingly delivered 800 of the bricks then contracted. for. This agreement was certain enough as to the price and quantity, by the reference to the foimer one, which had not been literally fulfilled.

It is a principle well settled, that the master shall have the advantage of his servant’s contracts, in the same manner as he shall be bound by them, in relation to those matters within the scope of his authority. The plaintiff has ratified the doings and contract of the agent by bringing the action. It is to be inferred from these facts that the parties made a new agreement; which is not within the statute of frauds, because the defendant then accepted a part of the goods sold.

It has been contended, however, that the plaintiff cannot iecover, because he has not done all on his part to be done, namely, that he has not separated the 11,200 bricks from the kiln in which they were. But where the bargain and sale is complete, and the vendee does not take the goods away, an action lies for the price. Here the bargain and sale was complete by the delivery of part. Nothing more was necessary to be done on the part of the vendor, until the vendee should call for the residue. The property was in the vendee. Suppose the plaintiff had 100,000 bricks in one kiln, and had sold 10,000 to one, 20,000 to another, and 10,000 to a third purchaser, and had given a brick to each purchaser as part of those sold ; could it be supposed that the property had not passed to the vendees?

T lis case was very well argued on both sides, but the view which we have taken of it seems not to render it necessary or expedient to remark upon many of the arguments and authorities which were adduced.

For the reasons above suggested, the Court are of opinion that the plaintiff is entitled to recover. 
      
       See Parks v. Hall, 2 Pick. 213 ; Young v. Austin, 6 Pick. 283.
     