
    Franklin County,
    January Term, 1828.
    
      Darius S. Barlow vs. David Read.
    
    That an action on book account will not lie where there is á contract of sale but not completed by actual delivery.
    This was an action upon book account, and the question before the Court arose upon the report of auditors and exception's, to their report. The report stated, “ That sometime in the fall of “ 1823,the plaintiff, being about to leave Fairfield, where he then “resided,and where he was following the profession of the law, had “ some conversation with the defendant, (then residing, and following the profession of the law in said town,) about thé salé óf “his, the plaintiff’s library, consisting1] of the Books contained in “ the plaintiff’s account hereunto annexed, viz: 4 vols. Dallas’ “ Reports, 3 do. Baylies’ Index, 2 do. Day’s Reports, 5 do. U. S. “ Laws, 2 do. Cowper’s Reports, 5 do. East. Rép. i do. Powell on “ Mortgages, 1 do. Peak’s Evidence, 1 do. Lawe’sPleadings, 1 do. <( Powell bn Contracts, 1 do. Jones on Bailment, 4 do. Bldclcstone’s “ Commentaries. A part or all of which were then taken by the “parties and packed up in a chest of the plaintiff, in the store of B. “ Barlow & Son, where the plaintiff then had his office. The “ defendant said he should be glad to make a purchase of said “books, if his health in the spring should be such as would enable “him to continue his profession. The plaintiff about this time or “ shortly after left Fairfield and went to Burlington, where lie “ continued principally to reside until the spring of 1824. At the “ time said Books were packed up, or shortly after, apart of them, “ to wit, Baylies’ Index, and one or two volumes of Dalias’ Re- “ ports, were carried to the office of the defendant, but by whom, “ or on what account, does not appear; but not however with any “ view to a purchase of said books. About the first of March,, “ 1824, the parties had a further conversation as to the sale of “ said Books : the defendant concluded to purchase if the price “ and mode of payment could be agreed upon. This was at the “ store aforesaid. The parties then went to the office of the “defendant, a short distance from the store, to ascertain the “ marked prices of the books that were there. While at the of- “ lice, after some preliminary conversation, we find that Read of- 
      “ fered to purchase of Barlow his books and “ his right of practising in Fairfield, for the fu- “ ture, (which Barlow was to relinquish) and to pay Barlow there- “ for the sum of one hundred dollars, part of which was to be paid “ in a horse which the said Read then owned and was known by “both parties. The horse was then at Cambridge, and unless “ the parties should otherwise agree, said horse was to be apprais- “ ed by Joseph Soule of said Fairfield, and what ever sum said “ horse should fall short of paying said sum of one hundred dol- “ lars, was to be paid in grain in a reasonable time therafter. To “ which proposal the said Read and Barlow did agree, and it “ was tiren proposed by said Barlow that Read should keep the “ books then in his office, and should receive the books which “ were at the store of B. Barlow & Son at said store ; to' which “ Read assented. But it does not appear that Read ever saw “ the Books at the store after they were packed up by the parties “ in the chest as aforesaid; and we find that Barlow never practised “law in Fairfield after said contract. About eight or ten days af- “ ter this agreement the defendant sent to Cambridge after said “ horse, and shortly after it was brought to Fairfield the said de- “ fendant called at the store of B. Barlow & Son, where the “plaintiff then was, and informed the plaintiff he was then ready “to deliver the horse.' Barlow said he could not attend to it that “ day, as he was going to St. Albans. It appeared drat he went “ to St. Albans that day, and soon after returning was confined to “ the house by sickness. He remained sick and was confined a “ considerable time. About five weeks after the offer to deliver “ the horse, and soon after the recovery of Barlow, he called on “ Read, and requested him to deliver the horse in pursuance of “ said contract, which Read refused to do, saying that he did not “ want the books : upon which refusal this suit was immediately “ brought. The next day after the commencement of the suit, “ Read carried the books, then in his office to the store of B. Bar- “ low & Son, and delivered the same to the father of the plaintiff. “ From' all which facts the auditors decide that tire action on “ book account is not sustained, and that there is nothing due from “ the defendant to the plaintiff, to balance book accounts between “ them , which is respectfully submitted by
    JOEL BARBER Je, )
    S. S. BROWN, } Auditors A
    
    J. W. SHELDON, )
    
      To the acceptance of die report the plaintiff objected. 1. Because from the finding of the facts there appears to have been a contract of sale of said books contained in the plaintiff’s account, and that part of said books were delivered to die defendant at his office, and the remainder the defendant agreed to take at the store of B. Barlow & Son where they were, and ever since have been, at the con-troul of Read — that tiiis amounted to a sale and delivery, and that the action of book account well lies, and that said report ought to have been for the plaintiff to recover said sum of one hundred dollars and his cost.
    The plaintiff’s counsel contended, That from the facts reported, die sale was complete, and that the action on book was a proper remedy for the purchase money.
    The counsel for the defendant contended, That from the facts found by the auditors no action of any sort could be sustained, inasmuch as there was no delivery nor earnest money paid, nor time of delivery or payment agreed upon. — 2 Bla. Com. 447. — Long on Sales, 114. — 1 Com. on Con. 15. — Dyer’s Rep. 30. — JYoy’s Max. 144. — 15 Johns. 349, McDonald vs. Hewet. — 13 Johns. 434. — 1- Salh. 113-14. If any action could be maintained upon the contract, it is contended that an action on .book account cannot be supported — because there was no delivery of the articles .charged. — 1 Jlik. Rep. 145, Read vs. Barlow — Sw. Ev. 83.— 1 Sw. Dig. 583, 729. — 2 H.Bla. Rep. 316,Goodall vs. Skelton. Again, if it should be contended that there was a delivery of Bay-lies’ Index and Dallas’ Reports, still it is contended that no action can be maintained without a delivery of the whole, as it was one entire contract for the whole of the books charged in the plaintiff’s account. — Long on Sales, 108. — 6 East, 614. — 5 Bos. & Pul. 61, Waddingtonv s. Oliver. It is further contended, that if there was any contract made between the parties, it was an entire contract, as well for the books, as in consideration that the plaintiff was to quit tire practice of law in the town of Fairfield; and the plaintiff cannot separate the contract, and charge the books which amounted to but one part of the consideration, at the full amount of the consideration agreed upon — viz: ‡ 100.— 8 Johns. 195, Crawford, Ex. vs. Morrell. — 1 Lord Ray. 360— i T.I2.240. — 1 Camp. JY.R. 361,'471.'-Long on Sales, 108. — 5 Bos. & Full. 61, Wading-tpn vs. Oliver. — Cro. Eliz. 79. — Sw. Dig. 685. — It is furtbejr contended, if there ever was a contract it was cancelled on the part of the plaintiff at the time the defendant offered to fulfil on liis part by offering to deliver the horse, apd which yras refused by the plaintiff. — Wide Report of Auditors. — 7 T. M. 181, 125.— 4 Wheat. 225. It is further contended, that the question ha^ already bfe.en decided by this court as to the deliyery, as the evidence to that point is the same as reported by. a former auditor,on which this court have once adjudicated. 1.4h/c.R. 145,Read vs. Barlow. It is lastly contended, that if there was any agreement of the parties in relation to the articles charged, it was ¶ special one, not only as to the price but as to the mode of payment, (i. e.) in a particular horse to be appraised by a person agreed upon, and in grain. — 1 Aik. B. Be/ad vs. B.arlpyi.. In which case ?i|so no action on book account can be sustained. — -! Ailc.R• Iff Slason vs. Davis et al. — Id. 358 — 1 Con. Rep. 75.Sw. Ép. 84;— Kirby’s Rep. 289. — 2 Root, 130. — 12 Johns. 274. — -Raymond et al. vs. Barnard. — 18 Johns. 456, Robertson vs. Lynch,- — 1 Doug. 23, ' 7 .
    The plaintiff’s counsel ip reply attempted to obviate the difficulties urged by the defendant’s counsel, but their argument was pot retained in writing. '
   Hutchinson, J.

delivered the opinion of the court, as follows : This cause was decided two years ago, upon a writ of error, and tire judgment reported in 1 Aiken' R. 145. The court then decided that, upon the facts which then appeared in the report of the auditors, the book account action tyo.uld not lie. It appeared that the dispute was upon matter which rested in contract merely, and the books contracted about had not passed into the actual possession of the defendant Read• The cause having been again s.ent to auditors, they have returned their report to this court in favor of the defendant, and have exhibited, in support of their, report, a full statement of tire facts in the case as proved before them, and ffese facts correspond, in every material part, with ¿be facts upon which the same cause was decided by this court reported by Judge Aikeps.

Aldis and Hunt, for the plaintiff.

Smith and Read, for the defendant.

This report of the auditors corresponding with the decision of this court, must be accepted.  