
    Rappleye vs. Adee.
    The plaintiff made an oral contract with the defendant for the purchase of twenty-five sheep by the former of the latter, for a specified sum. The sheep were selected by the plaintiff, out of the defendant’s flock, and with the assistance of the defendant’s servant, acting under the defendant’s instructions, separated from the rest of the flock and marked with the plaintiff’s mark, and put in a separate enclosure. The defendant agreed to pasture them for the plaintiff, eight or ten days, and they were to be kept in a separate field ; but upon the suggestion that the pasturage in that field, and the fences around it, were poor, it was afterward agreed to let them run with the other sheep; and after a few hours’ separation, they were turned back with the flock.
    Held, 1. That the contract being by paroi, and no part of the purchase money actually paid, by the purchaser, at the time of the purchase, the only question was, whether the contract was taken out of the statute of frauds by the delivery and acceptance of the sheep sold.
    2. That the judge, at the circuit, in advising the jury that the contract was void under the statute, unless there was a delivery and acceptance of the sheep, at the time of the bargain, and submitting that question to them, properly applied the rule established in Shindler v. Houston, (1 N. Y. 261.)
    3. That the evidence clearly warranted the jury in finding such delivery and acceptance.
    
      4. That the whole question in respect to the acts of the parties in regard to delivery and acceptance, having been fairly submitted to the jury, their verdict could not, properly, be disturbed.
    THIS is an action commenced in a justice’s court, and after a verdict for the plaintiff, appealed to the county court of Seneca county, and retried. The action was brought to recover damages for the non-fullment by the defendant of a contract for the sale of twenty-five sheep.
    The proofs showed that in 1869 the plaintiff made an oral contract with the defendant for the purchase of said sheep, for the sum of $71.75; that said sheep were selected by-the plaintiff, out of the defendant’s flock, and with the assistance of the defendant’s hired man, acting under the instructions of the defendant, separated from the rest of the flock and marked with the plaintiffs’ mark, and put in a separate enclosure; that the defendant agreed to pasture them for the plaintiff eight or ten days, and they were to be kept in a separate field; but upon the suggestion that the pasturage in the field, and the fences around it, were poor, it was afterward agreed to let them run with the other sheep; and after a few hours’ separation they were turned back with the flock. The plaintiff had a note against the defendant for $16, which was to be applied upon the purchase, and he was to pay cash for the balance. The plaintiff not having the note with him, then, it was agreed that the defendant’s hired man should go to the plaintiff’s house the same day, and receive the note, the interest being cast upon it, and a check on the bank for the balance. The defendant did not send for the note and check, but soon after sold and delivered the sheep to another person at a small advance in price. The plaintiff, on the day of the purchase, on his return home, cast the interest on the $16 note, making it forty-two cents, and endorsed on the note a receipt for the amount, $16.42, to apply on the sheep, and drew a check on a bank for the balance of the purchase, $55.53, and left it with his wife to deliver to the defendant’s hired man, according to agreement, upon request. On léarning of the sale of the sheep by the defendant, the plaintiff tendered said note and check, and also the amount of said check, in money, and demanded the sheep; which demand was refused,
    On the trial in the county court, the judge held that the contract was void under the statute of frauds, unless the sheep were actually delivered to, and accepted by, the .plaintiff, and submitted that question to the jury, directing them if they found for the plaintiff, they might treat the $16.42 note as paid, and find for the plaintiff the damages for the sale of the sheep, being the difference between the note and the price received for the sheep, by the defendant, at the time of the sale, deducting the amount unpaid upon the sheep at the time. The jury found a verdict for the plaintiff for $35, and oh motion in the county court, a new trial was denied, in that court, and the defendant appealed therefrom to this court.
    
      Wm. V. Bruyn, for the appellant.
    I. The court should not have submitted the question of delivery to the jury; but should have nonsuited, upon the plaintiff’s showing, as he was requested to do. 1. How could there be a delivery so as to change the possession, when it was understood between the parties, before their minds met upon the price to be paid, and before there was any selection or marking, “The defendant was to keep the sheep eight or ten days.” Or, in other words, it was distinctly agreed, that she was not then to part with the possession of the sheep. The picking out, marking and turning back with the rest of the flock is consistent therewith; and unquestionably shows (nothing being said to the contrary at the time) that the intent was simply for identification, so that after the lapse of the ten days, and after .the defendant had known that the payment was satisfactory, the twenty-five sheep might be more readily distinguished. This view, taken with the suggestion as to the plaintiff’s understanding of it, at the time of joining issue, makes the matter, in the eye of the law, so plain that it was error to submit the same to the consideration of a prejudiced jury, for them to blunder over. (Shindler v. Houston, 1 N. Y. 261.) “There must be some act of the parties, amounting to a transfer of the possession, and an acceptance of the goods.” The statute is 3 Eevised Statutes, pages 221,222: “2d. Unless the buyer shall accept, and receive, part of such goods, or the evidences, or some of them, of such things in action.” See also Brabin v. Hyde, (32 N. Y 522.) Also Bailey v. Ogden, (3 John. 421,) Kent, Chief Justice: “ The circumstances which are to be tantamount to an actual delivery should be very strong, and unequivocal, so as to take away all doubt, as to the intent and understanding of the parties.” “Marking of logs is an equivocal act, and may be for the purpose of taking possession, or merely for that of identity.” (Evans v. Harris, 19 Barb. 416.) 2. The talk about the defendant’s keeping the sheep was first in point of time; then came the selecting, marking &c. ; and before the parties met again the marked sheep were turned back with the rest of the flock, some ninety in number; and then the minds of the parties for the first time met as to the manner of payment. Now to allow a jury to find a delivery and a subsequent bailment, under such proof, is subversive of the spirit and intent of the statute of frauds. The plaintiff had no property in any sheep, at the time of the talk about keeping them, upon which to found a bailment; it was simply a part of the negotiation.
    II. The plaintiff does not bring his action for trover; does not claim to recover for a conversion of the sheep by the defendant; but his action is to recover damages by virtue of the special contract. Now when it appears on the trial beyond question that the plaintiff did not fulfill the contract on his part, how can he claim damages because the defendant has not fulfilled on her part ? The check which the plaintiff was to leave with his wife, and which he offers in evidence, was not such a check as the agreement called for. The plaintiff has failed to perform the condition precedent, and therefore cannot recover any damages. The money is still in the bank; the $16 note is not invalidated; and he did not comply with the terms of the contract.
    III. The verdict of the jury should have been in favor of the defendant on the question of fraud; and the county court should have granted the order for a new trial. It seems very clear from the undisputed evidence, that the defendant was deceived and misled by the plaintiff, as to the value of the sheep he claims to have bought; as she claimed when she next saw him after the contract.
    
      A. Gilchrist, for the respondent.
    I. On the evidence, the verdict of the jury should not be disturbed. The parties made a complete contract; no credit was contemplated. So far as it appears, the only reason why the sheep were not then paid for, was because they did not know the amount of the note. The plaintiff was not to wait till he came after the sheep before paying for them. He was to leave them with Mrs. Adee for a week or ten days. The payment was to be made the same day. This means that the parties regarded the sale as a completed one, the property passed, and nothing remaining unperformed but payment. The defendant agreed to keep the sheep for the plaintiff. The particular place where they were to be kept was selected; the place was changed, and the sheep were turned back with the rest of the flock, at the request and for the accommodation of the plaintiff. Eappleye did not want them put in Theodore’s field, because they might get away, and told the defendant so— a very natural fear if the sheep were regarded as his property, but not if the defendant was still to remain the owner. This transaction does not rest on the words of the parties, as in the case in Shindler v. Houston, (1 Comst. 261.) The acts of the parties under the agreement they made are sufficient to constitute a delivery. The sheep were separated from the rest of the defendant’s flock, marked by the defendant’s servant, by her direction, and put in a separate yard, and this for the purpose of putting them in Theodore’s field, away from the balance of the flock, and as the defendant told Francis Eappleye, that the plaintiff might get these sheep as he wanted them. They remained separated until at the plaintiff’s request they were turned together again. Whether these acts, or the agreement, were first in point of time is a matter of no consequence. It was a single transaction, occupying but a short time. Upon this evidence and upon a charge upon the law of the case satisfactory to the defendant, the jury found a verdict for the plaintiff. They have found that by these words and acts, both parties intended a delivery and acceptance, and there was. such a delivery and acceptance. If they believed the plaintiff’s evidence—as they must hate done—they could not well have found otherwise. In any event it was a proper question for the jury, whether by these words and acts the defendant intended to deliver the sheep and the plaintiff to accept them.
    II. The authorities fully sustain this verdict: “Upon a sale of personal property any act of the parties indicative of the exercise of ownership by the vendee, may be submitted to the jury as evidence of receipt and acceptance, to take the case out of the statute of frauds.” (Gray v. Davis, N, Y. 285. Woodfordv. Patterson, 32 Barb. 630. Vincent v. Germond, 11 John. 283. Bissell v. Balcom, 39 N. Y. 275. Wylie v. Kelly, 41 Barb. 594. Brown v. Hall, 5 Lans. 177.) The authorities in England and in other States, are to the same effect. (Chaplin v. Rogers, 1 East, 192.) On an oral sale of two horses, the buyer requested the vendor to keep the horses at livery for him, to which the vendor consented, and thereupon removed the horses from Ms sales stables to another stable where he kept horses at livery. Held a sufficient delivery. (Elmore v. Stone, 1 Taunt. 458.) Although this case was doubted in subsequent decisions, it is cited as an authority in Bissell v. Balcom, (39 N. Y. 275,) and also in Moore v. Waldron, (37 Law and Eg. 6.) “A complete verbal bargain having been made for the sale of a horse by the plaintiff to the defendant, the plaintiff, before there had been an actual delivery of the horse, asked the defendant to lend him the horse for a short time, as he had two or three journeys to make. The defendant assented, and the horse remained for a fortnight with the plaintiff, was used in these journeys, and afterward was sent to the defendant, who refused to receive him.” Held a sufficient delivery and acceptance, to take the case out of the statute of frauds. Court of Queen’s Bench, 1856. (Moore v. Waldron, supra.) The selecting and marking of sheep in the possession of B., who was desired to retain possession of them for the vendee, was held to be a sufficient delivery to complete the sale and pass the property. (Barney v. Brown, 2 Term. 374.)
    ■ III. That the check was not in the form agreed on is wholly immaterial. The defendant did not send for it. She made no objections to the check, or its form, when it was tendered to her. The defendant’s exception to the admission of the check in evidence, is not good. 1. Upon the question as to the amount of recovery, it was proper, if not necessary, to show that a tender had been made, of the purchase price of the sheep, which was the note, and the amount of the check in addition. Ho objection having been made by her, to the check or its form, it was properly received in evidence. 2. If the check was not material, its admission as evidence was perfectly harmless. It could not by any possibility have injured the defendant. A new trial should not be granted on that ground, especially as the jury were instructed to disregard it. (Bundle v. Allison, 34 N. Y. 180. Woodruff v. McGrath, 32 id. 255. Hier v. Grant, 47 id. 278.)
    IY. The plaintiff had the right to bring the action in the form he did, i. e., to waive the tort, and to bring the action for the amount of money received by the defendant on her wrongful sale to another. (Harpending v. Shoemaker, 37 Barb. 270, Sohroeppel v. Corning, 6 N. Y. 112. 1 Hill, 240, and cases there cited.)
    
    Y. The amount of the note held by the plaintiff against the defendant and Ira H. Coleman, was properly allowed by the jury. There is no dispute but that the defendant agreed to take the note in payment for the sheep. If the sale was valid, this agreement is a valid one, and not within the statute of frauds. (Davis v. Spencer, 24 N. Y. 386. Brand v, Brand, 48 id. 675.)
    
      VI. Upon the question whether this sale was procured by fraud on the part of the plaintiff, the verdict is conclusive. 1. The defendant acquiesced in the submission of the question .to the jury. There was no request made that the jury be directed to render a verdict for the defendant on this ground; no request to charge, and no exception to the charge of the court, submitting this question. (Rowe v. Stevens, 12 Abb. N. S. 389. Barrett v. R. R. Co., 45 N. Y. 628.) Having taken the chances of a favorable verdict, the defendant is con-eluded by the one rendered. 2. The only ground on which any fraud can be claimed, is that the plaintiff deceived the defendant as to the market value of the sheep. Upon this question every portion of the evidence for the defendant which is at all material, is contradicted by the plaintiff. The question must, in any event, have been submitted to the jury. 3. The Supreme Court, upon appeal from a court of inferior jurisdiction, has no power to reverse a judgment, on .the ground that it is against the weight of evidence. The errors of the jury must be corrected in the county court. The decision of that court upon the question, whether the verdict is against the weight of evidence, is final. (Thurber v. Townsend, 22 N. Y. 517. Ex parte Bassett, 2 Cowen, 458.)
   By the Court, E. Darwin Smith, J.

The contract of sale in this" case being by paroi, and no part of the purchase money actually paid by the vendee at the time of the purchase, the question presented, and the only one, in this case is, whether the contract was taken out of the statute by the delivery and acceptance of the-sheep sold.

In Shindler v. Houston, (1 N. Y. 261,) which is a leading case in this State upon this question, it was held that “to constitute a delivery and acceptance of goods, such as the statute requires, something more than mere words is necessary; snperadded to the language of the contract there must be some act of the parties amounting to a transfer of the possession, and an acceptance thereof by the buyer.” The rule of this case it seems to me was properly applied on the trial of this cause. The judge advised the jury that the contract was void under the statute unless there was a delivery and acceptance of the sheep at the time of the bargain; the evidence, I think, clearly warranted the jury in finding such delivery and acceptance. The sheep were selected and separated from the rest of the defendant’s flock, and the plaintiff’s mark put upon them, and then, after such separation, it was agreed to let them run with the defendant’s sheep for a few days.

[Fourte Department, General Term, at Buffalo,

June 3, 1873.

Mullin, Talcott and E. I). Smith, Justices.]

The whole question in respect to the acts of tire parties relating to this question of the delivery and acceptance of the sheep was fairly submitted to the jury, and their verdict, I think, cannot properly be disturbed.

lío error, I think, occurred on the trial, and the order denying the motion for a new trial should be affirmed.  