
    Gray against Davis.
    Upon a sale of personal property, any acts of the parties indicative of the exercise of ownership by the vendee may he submitted to the jury as evidence of receipt and acceptance, to take the case out of the statute of frauds.
    A sold B a stock of goods in store. After the verbal bargain, an inventory of the goods was taken, B going through the store and calling off the parcels, and A entering them in the inventory, which was headed “ B bought of A,” &c. On leaving the store, A offered B the keys, which he declined to take until next day, saying that he had no insurance The vendor then offered to assign his own policies, when the purchaser requested the vendor’s clerk to take the keys for him until the morning, which he did: Held, that these facts were sufficient evidence to go to the jury of receipt and acceptance by the purchaser.
    
      Per Foot, J.: The facts in this case were even sufficient to have warranted the court in holding the delivery established, instead of taking the case from the jury upon the opposite ground.
    This action was brought in the New-York common pleas, to recover the price of a stock of goods alleged to have been sold by the appellant to the respondent; and there being no memorandum in writing of the bargain, the question was whether the respondent, who was the buyer, accepted and received the goods.
    The' goods were in the first and third lofts of a store, and constituted a stock for conducting the umbrella business. The bargain was made about noon, the 1st day of April, 1847. In February previous, the appellant had made an' inventory óf his stock of goods, which the respondent had seen and examined several times before the day of the bargain. The agreement was, that the appellant sold, and the respondent purchased, the goods on twelve months’ credit, at the prices mentioned in the inventory, less a deduction of $350. The parties also agreed that the respondent should take the two lofts, until the first of May following.
    When the verbal bargain was completed, the appellant told the respondent “ to consider the goods and premises his at once.” The respondent answered, “I cannot attend to it now, but will come at four o’clock and take possession and • inventory the stock.” This was acceded to, and, by agreement of the parties, the clerk of the appellant locked the store till that hour. In the meantime, the appellant, with the express assent of the respondent, delivered to a customer $30 worth of umbrellas which had been laid out for him. At four o’clock P. M., the parties met at the store, and took an inventory of the stock, the respondent and the clerk of the appellant calling off the goods, and the appellant taking an account of them. The heading of this inventory was as follows :
    Mr. Charles Davis,
    “ Bought of E. C. Gray.”
    
      The stock was all gone through with, and the prices put down from the inventory taken in February, except the umbrella frames up stairs. They were not counted, but taken down from the inventory of February, and the parties agreed that the respondent should count them afterwards, and if he found an error in them, it should be corrected. The respondent looked over the inventory, made no objection to it, and handed it to.the appellant, with a request to copy it, and give him a copy in the morning. The appellant then directed the clerk to hand the keys of the store to the respondent. The latter said “he did not want to take them till morning; that his rent was not to commence till then, and that he had no insurance.” The appellant replied, “I will give you my policies of insurance on the stock.” The purchaser then directed the clerk to take the keys for him till morning, and the clerk did so. All three then left the store together, and Gray’s sign was immediately taken down in Davis’ presence.
    In taking the inventory, some buttons were met with, which were not in the February inventory. The price was not known, and the respondent directed the clerk to inquire the price of them in the morning, and insert it in the inventory.
    The next morning the respondent refused to have anything more to do with the matter.
    At the trial, upon these facts being shown, the judge held that there was not sufficient evidence of delivery and acceptance to submit the question to the jury, and ordered judgment for the defendant. From this judgment, affirmed at general term, the plaintiff appealed.
    The opinion of the court below was delivered by Wood-ruff, J., and so far as relates to the points considered in this court is as follows :
    But the plaintiff insisted, secondly, that he gave such evidence of a delivery of the goods as should have been submitted to the jury.
    
      The plaintiff had undoubtedly shown the making oof a bargain for the goods in question, at noon of the 1st April, 1847. But no,, delivery was then made; on the contrary, in reply to the plaintiff, who “ told him to consider the goods and premises his, at once,” the defendant declined receiving them, and said, “ I cannot attend to it now, but will come at 4 o’clock and take possession and inventory the stock.” He came to the store in pursuance of his promise, and the parties, together with the plaintiff’s clerk, engaged in taking the inventory, which was, with the exception of a few details, completed, but not footed up, or the amount of the goods ascertained. Nevertheless, if the possession had then been surrendered and accepted, the fact there were some mistakes in the inventory or that the amount was not footed, would not have rendered the delivery less effectual. But a considerable portion of the goods remained to be counted, amounting to over $260, and as to some buttons the price was not ascertained. The goods not counted were set down in the inventory at the same number or quantity that was found on the inventory of the previous February, and it was agreed that the defendant should count them afterwards, and if any error was found it should be corrected. And as to the buttons, the clerk was directed to ascertain the price the next morning, and have them put down at the price so ascertained. Had this sale been for cash, the last named circumstances might have brought the case apparently within the rule that where any thing remains to be done between the parties for the purpose of ascertaining either quantity, value or quality, there is no delivery. This was held in Rapelye v. MacJcie (6 Cow., 250), where weighing and designation of particular bales remained to be done by the vendor; in Outwater v. Dodge (7 Cow., 85), where transportation and inspection of the fish sold remained to be done by the vendor; in Ward v. Shaw (7 Wend., 404), where slaughtering and weighing the cattle sold remained to be done by the vendee, to ascertain the price, &c.; in 
      Andrew v. Dietrich (14 Wend., 31), where the vendee was to measure and cut off the desired quantity of carpeting; and in Downer v. Thompson (2 Hill, 137), where counting and designation remained to be done by the vendor. But where there is a sale upon a credit of twelve months, and an actual surrender of possession by the vendor and a taking possession by the vendee, with intent to deliver and accept, the price being agreed upon in detail and the delivery being in bulk, it is going too far to say that because the vendee is to count the goods to ascertain the gross amount, therefore the delivery is incomplete; or where (as in regard to the buttons) the quantity is ascertained, but the price requires a reference to a third party, which it is agreed shall be had the next morning, that this makes the whole delivery invalid. (Crofoot v. Bennett, 2 Comst., 2-58, 260.)
    The true question in the present case is, was there a delivery of the whole of the goods (be they more or less) and an acceptance by the defendant, with intent to pass and to receive the title to the property ? A single fact proved by the plaintiff’s witness seems to me conclusive on this subject, and to have left no question in the case which it was proper to submit to the jury. When the parties had finished the inventory (so far as it was completed) the plaintiff directed his clerk to give the keys of the store to defendant. Here was a distinct manifestation of an intention to place the defendant in possession of the goods and store. The defendant declined receiving them. This was a distinct declaration of his intention not to take possession; and the defendant gave a reason—“he had no insurance.” It was not possible for the parties then to misunderstand this, and it cannot now be misunderstood. It is as plain as if the defendant had said, I will not accept a delivery so as to change the title, because if I do the property will remain over night unprotected by insurance.
    The plaintiff did then so understand it, for he replied, “I will give you my policies of insurance on-the stock.” This however was not done, and according to the usual conditions of fire policies (requiring a consent of the company to a transfer) could not be until the next day. How then can it be for a moment believed that the defendant “accepted and received ” the goods, or intended to assent to the plaintiff’s offer to deliver the keys, in the face of his express declaration, which meant, and could only mean, that he would not thus accept because not insured? A verdict for the plaintiff (had the case been submitted to the jury) must in the face of such a refusal have been set aside as unsupported by the evidence. The direction to the clerk to take the keys must be construed in connection with this conversation. It appears by the evidence that he kept the keys before this supposed delivery; he unlocked the store when he went there that afternoon. No change in the custody of the keys appears therefore to have been then contemplated; he merely continued that custody. And it appears to me. impossible to doubt, that when the parties left the store, the defendant had as little idea that the goods had been delivered to him and accepted, as he had when he left at noon. Besides, if the promise by the plaintiff to give him his policies of insurance was material and affected this question, that was, even in the aspect of the case most favorable to the plaintiff, an inducement condition, precedent to the acceptance of the goods that night, and it is in this view obvious, that something remained to be done by the vendor which was not done, and so far as appears by the bill of exceptions has never been done; and the delivery was incomplete, according to the cases above cited, without such a transfer.
    It is to be borne in mind that acceptance by the vendee is the material fact; not a tender nor a mere manual tradition by the vendor; and a final and absolute appropriation by the purchaser is said to be requisite to a compliance with the statute, i. e. (laying out of view the subject of constructive possession by symbolical delivery, which is not material in the case), the acceptance must be final, complete and irrevocable, and the subject matter must have come into the absolute possession of the purchaser, or of some person authorized finally to receive it for him. (Story on Sales, §§ 276-280 and cases cited in the notes.) And in Shindler v. Houston (1 Comst., 265), Mr. Justice Gardiner cites the rule thus: “ There must be an actual acceptance by the vendee with the intent of taking possession as owner.” And Mr. Justice Wright says, “this ultimate acceptance can only be evidenced by unequivocal acts.”
    I think the case was correctly disposed of on the trial, and the judgment must be affirmed with costs.
    
      E. C. Gray, for the appellant,
    cited the following authorities: Wilkes v. Ferris (5 John., 335); DeRidder v. M’Knight (13 John., 294); Shindler v. Houston (1 Comst., 261); Crofoot v. Bennett (2 Id., 258); Olyphant v. Baker (5 Denio, 379); Goodrum v. Smith (3 Humph., 542); Byre v. Etnyre (2 Gill, 150); Moon v. Haws (3 Aik., 390); Chaplin v. Rogers (1 East, 192); 6 Id., 602; Blenkinsop v. Clayton (1 Moore, 328); Shumway v. Rutter (8 Pick., 443); Macomber v. Parker (13 Id., 175); Riddle v. Varnum (20 Id., 280); Caldwell v. Smith (4 Dev. & Batt., 64); Houdlette v. Tallman (2 Shepl., 400); Wing v. Clark (11 Id., 366); Hunter v. Talbot (3 Sm. Marsh., 754); Jewett v. Warren (12 Mass., 300); Smith v. Nevitt (Walker, 370); Crawford v. Smith (7 Dana, 59); 2 Kent Com., 498, 501.
    
      A. Thompson for the respondent
    referred to 1 Crompt. & Mees., 334; 7 Cow., 85; 1 Comst., 261; 10 Ad. Ellis, 111.
   Foot, J.

These facts make an entirely different impression upon my mind, and when tested by the rules of law applicable to them, lead me to a different conclusion from the one adopted by the common pleas. The transaction in respect to the keys, instead of being conclusive, as the learned judge held, in favor of the respondent, is directly the reverse. When offered to him, he declined receiving them because he had no insurance on the goods. But on the appellant assuring the respondent that he should have the benefit of his policies, the respondent directed the clerk, a third person, to take them for him, and he took them accordingly, which, in substance and legal effect, is the same as if he had received them himself.

The learning on the subject is collected, and the rules established by and deducible from it clearly presented in the case of Shindler v. Houston (1 Comst., 254). Gardiner, J., there says: “ The acts of delivery and acceptance mentioned in the statute are something over and beyond the agreement of which they are a part performance, and which they assume as already existing.” There are in this case two minor acts, significant of ownership, by the respondent, which I will barely mention. One is the expression of his • assent to the delivery of the parcel to the customer; the other, his direction to the clerk to ascertain the price of the buttons and insert it in the inventory. But the two principal, and, in my judgment, controlling facts, are the taking of the inventory and acceptance of the keys. The taking of the inventory, with a heading such as it had, viz., a declaration that the respondent had bought the goods of the appellant, was a clear and unequivocal act of ownership. The manner, however, in which the inventory was taken was particularly significant. The respondent himself, with the aid of the clerk, handled the goods, took them into his manual possession, called off the different articles, by doing which he must have specified the quantity and quality of each. The handling and entering in the inventory in this manner, of each parcel of the goods, amounted, under the circumstances, to a designation andt acceptance of it at the price inserted in the inventory.

The delivery and acceptance of the keys are still more decisive. That act alone is, according to several cases, a symbolical delivery, and of itself sufficient to take the case out of the statute. (2 Kent Com., 4th ed., 500, and cases there cited.) I do not, however, place my opinion on the symbol, but on the fact that, after the taking of the inventory, all that remained to be done to render the delivery and the acceptance of the stock of goods perfect, was to hand the respondent the keys and for him to receive them, both of which were done. It was the only remaining act which could be done to complete the business. The parties themselves so considered it; for when it was done, the appelant’s sign was taken down in the presence of the respondent, and without objection from him.

The idea suggested and adopted by the court of common pleas, that the acceptance of the keys by the respondent was on condition that the policies should be assigned to him, is not supported by any proof in the case.

On the whole, I think the court of common pleas erred, not so much in taking the case from the jury as in deciding there was not a delivery and acceptance of the goods.

Gardiner, J.

I think that the question of delivery should have been submitted to the jury. Kenworthy, the plaintiff’s clerk, testifies that, after the inventory of stock was taken, and it had been arranged that Gray should copy the bill of goods and hand it to the defendant in the morning, he “ told the witness to give the keys of the store to the defendant. Davis said he did not want to take them until morning; that his rent did not commence until then, and he had no insurance. Gray replied, ‘ I will give you my policies of insurance on the stock.’ Davis then told me to take the keys for him until morning, and I took them, and we all left together.” There is no doubt that Gray intended to give possession of the goods, and whether the defendant designed to accept them, by the direction above mentioned to Kenworthy to take the keys for him until morning, was a question for the jury.

The judgment should be reversed and a new trial ordered.

Paige, McCoun and Jewett, Js., concurred.

Judge Ruggles was for affirmance, for the reasons given in the court below.

Judge Gray took no part in the decision.

Judgment reversed and new trial ordered.  