
    Jeremiah Scully, Respondent, v. Joel D. Smith and Charles Smith, Appellants.
    Third Department,
    December 8, 1905.
    Statute of Frauds oral sale of goods over fifty dollars in value — failure to show delivery..
    In an action for breach of contract by defendant in failing to complete a purchase of straw of a value of over fifty dollars, there is a failure to show a contract enforcible under the Statute of Frauds, when the alleged contract was - oral and the plaintiff refused to deliver the straw to an alleged agent of the defendant’s because he was. .unable to pay cash therefor at the time and place agreed. . ■ .
    ■ Appeal by- the . defendants, Joel D. Smith and another, from a judgment of the Supreme Court in'favor of the plaintiff, entered in tlie office of the clerk of the county of Columbia on the 27th day of December, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of ■December, 1904, denying the defendants’ motion for a new trial ■ made upon the minutes.' ■'*. *
    In thé fall- of 1903 one William Sweet made a verbal agreement with the plaintiff to purchase his crop of rye straw for twenty dollars.a ton. The straw was to be paid for in cash as soon as loaded upon the..cars at the Kinderhook depot. The plaintiff was. to deliver the straw upon the cars: Plaintiff loaded two cars of straw with .the assistance of said Swfeet. • Svveet.' thereupon went off to get the money to pay therefor, but was unable to procure the full amount which he was required by the contract to - pay. The plaintiff refused to allow the straw to be removed by Sweet until the full amount was paid. After the cars had been loaded for about a week, the said Sweet having failed to pay therefor, the plaintiff sold the - straw to other parties for seventeen dollars a ton. ■ This '.action is brought against the defendants to recover the difference between the price of twenty dollars, which was the contract price; and tlie price which plaintiff finally received for his straw, together with costs of demurrage, etc. The damages are stipulated-' at one hundred dollars, if recoverable.. The plaintiff offered evidence to prove, .and the jury has found, that Sweet in the transaction was acting as agent for the defendants. From the judgment entered upon the verdict of the jury and from-the order denying-the defendants’ motion for a new trial the defendants have appealed. Further facts appear in the opinion.
    
      R. W. Brass, for the appellants.
    
      A. H. Farrar, for the respondent.
   Smith, J.:

Defendants urge two grounds of exemption frorri liability: First, that Sweet was not acting as their' agent in the purchase of plaintiff’s straw ; secondly, that the contract is void under the Statute of Frauds. (See Pers. Prop. Law [Laws of 1897, chap. 417], § 21.) It is unnecessary to discuss the question first raised because in our judgment plaintiff has not proven a sufficient delivery and acceptance of the straw to meet the requirements of the statute that a sale of personal property of fifty dollars or more in value must be evidenced by a writing unless accompanied by a delivery and acceptance of some part of the property. In Shindler v. Houston (1 N. Y. 261) the head note in part reads: “ It seems that to constitute a delivery and acceptance of goods,"such as the statute requires, something more than mere'words is necessary. Superadded 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 case of cumbrous articles is not an exception to this rule.” At page 269 the rule is expressed by Weight, J., as follows: “ The best considered cases hold that there "must be a vesting of the possession of the goods in the vendee as absolute owner, discharged of all lien for the price on the part of the vendor, and an ultimate acceptance and receiving of the property by the .vendee, so unequivocal that he shall have precluded himself from taking any objection to the quantum or quality of the goods sold.” In the same case Judge Gaedinee refers to the case of Phillips v. Bistolli (2 B. & C. 511), in which it is said: “ To satisfy the statute there must be a" delivery of the goods by the vendor, with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter with an intention of ■ taking to the possession as owner.”' Judge Gabdihek then proceeds to say: “ This, I apprehend, is the correct rule and it is obvious that it can only be satisfied by something done subsequent to the sale unequivocally indicating the mutual intention of the parties.” (See, also, Cooke v. Millard, 5 Lans. 243.) In Rodgers v. Phillips (40 N. Y. 519) it is held that delivery to a, carrier specially designated by the purchaser, where such carrier has no other authqrity than to transfer the goods, does not satisfy the statute The station agent swears that the car into which the straw was loaded was ordered for plaintiff • to load straw -in for defendants. The plaintiff swears that the car was ordered -by Sweet for defendants. This conflict is, in our judgment, of little materiality.' The fact remains undisputed that the possession of the straw was never unequivocally surrendered to Sweet as the agent of the defendants! He was expressly forbidden to remove the straw .until it had been paid for. ■ This was sworn to by .the plaintiff himself. Within all the authorities such á retention of control is inconsistent with- such a complete delivery -as is necessary to take the .contract out of the condemnation of the statute! The law is not concerned With the reason foi’ a refusal on the part of the defendants to pay for the straw or of the plaintiff to make complete delivery. With an absolute surrender of possession required to make valid the contract, plaintiff has.failed to show an .existing obligation on the part of the-defendants. •

•The judgment and order should, therefore, be reversed and a new trial granted-, with costs to appellants to abide the event.

All concurred.

■ Judgment and order reversed and new-trial granted, with costs to appellants to abide event. "  