
    Thomas and Wm. Jackson vs. James Watts. Assumpsit, $499 37. The Same, and T. and O. Watson vs. James Watts. Process, $70.
    Tried before the City Court of Charleston, May Term, IS 20.
    An affidavit stating the defendant to be indebted to the agent as attorney for the plaintiff, is a sufficient affidavit to hold the defendant to bail in an action by the plaintiff.
    Where the plaintiff sold fhe defendant $ 1553 02 worth of cottori bag--ging, ami upon the deferdant’s refusing to comply with the contract, had the bagging sold at auction, which produced ¡g 1053 65, and . brought his action for ¶, 499 37, the difference, the court Held, that the plaintiff was within the jurisdiction of the City Court, which ex. tended to $600; though it was objee'ed that the plaintiff by life •vn shc.r'ng, was not v/ithin the jurisdiction ;. as he ought tobara brought his action for the whole amount of the purchase money of ’he bagging. The court also Held, that the re-sale of the goods the plaintiff at auction was not a recision of the contract with the defendant ; but that he could still maintain his action for the difference.
    After the defendant had agreed to purchase a quantity of cotton bagging from the plaintiff, he was toid it remained in the plaintiff’s store subject to his risk, whereupon he ordered and had some of it turned out of the store, which he afterwards returned, and then refused to take any part of it, the court Held, that it was a sufficient delivery under the 17th section of the Statute of Frauds.
    3b ROM the report of the honorable Judge Drayton, Recorder of Charleston.
    “ No argument was made before me in the latter of these cases, but I believe it was intended by the counsel that the decision in the first case should govern both.
    In the first cáse, the statement was, that Mr. John Haslett, the agent of the plaintiffs, sold to t.he defendant á quantity of cotton bagging for the price of gl'553 02. After the sale and delivery, the defendant refused to take the bagging; in consequence of which, the agent gave iiotice to the defendant that if he did not, within a specified timé call and take away the goods they would be sold at public auction on his account and risk. The defendant never called of sent for the bagging, which, according to the notice, was sold at public auction ; and produced, deducting Commission's and incidental expenses, the sum of g 1053 85. For the difference between this suin' and g 1553 02, being 499 37,' this action, was brought, it being the amount of the loss alleged to have been sustained by the plaintiffs through the failure of thé defendant to comply with his Contract.
    Mr. Jones, a clerk of Mr. Haslett, sáid, that about the 8th of February, Í8Í9, the defendant purchased the cotton bagging alluded to, añd also some linens; that the linens were taken away by the defendant, but not the bagging, the defendant saying, it wanted width according to the agreement; that when this objection was made, Mr. Haslett was not present, that the witness repeated to Mr, 
      Haslett the objection of the defendant as to the bagging after which, Mr» Haslett requested the witness to call upon the defendant and receive payment for him for the linens and bagging. He called upon the . defendant, who ashed whether the whole business would be settled if he paid for the linens 1 To which the witness said, he supposed so 5 acting from his own discretion, and not by the authority or sanction of Mr. Haslett. The defendant then promised to call upon Mr. Haslett to deliver him a check for the linens, and to take his receipt. The defendant and himself went together to Mr. Hasletfs store.— After offering a check for the linens,, the defendant said, now the business is all settled ; but Mr. Haslett replied, by no means; you must pay for the bagging. The defendant went away in the company of the witness. Upon the way, the defendant told the witness if he would give him a receipt for the linen?;, he would pay for them. A receipt was given for the linens, and theirprice received from the defendant. The witness was present when Mr. Haslett and the ■ defendant were bargaining about the bagging, when,-after a great deal of discussion, he heard the defendant say he would give for it thirteen cents. Before the contract, the defendant looked at and examined the bagging. Nothing in his hearing was mentioned about the width. Between the date of the contract between Mr. Haslett and the defendant, and the refusal of the latter to take it, cotton bagging was getting duller and duller,— When the bagging was sold, the witness thought it cheap, and below the market price. The nature and conditions Of the contract appeared to the witness to be perfectly fair and well understood, and that the defendant was a very cautious man, and long in making a bargain. Upon being cross examined, Mr. Jones said, that in selling cotton bagging, the common practice is to take the description from tlie invoice, and the purchaser examines it, and that the invoice and the article, sometimes, though rarely, differ.
    Mr. Bryan, a clerk cf Mr. Haslett, stated, that he fre,quently saw the defendant with Mr. IJasletl, that he heard him several times enquire about cotton bagging; that after a good deal of discussion, the bagging was offered at 13 cents. The defendant said he would reflect upon the price, and afterwards called and agreed to take it at that: price. The witness rendered in the bill to the defendant, and told him the bagging was in the store at his risk. — » The defendant was very often in the room where the bagging was before he agreed to buy it, was a very prudent, cautious man, not likely to buy without examination, and 13 cents was a fair price for it. Py the desire of Mr, Haslett, the witness notified the defendant, that if he did not call and take away the bagging, it would be sold at public auction at his ' risk. Pursuant to the notice, the bagging was sold at public auction, on account and risk of the defendant, The witness thought, but was not positive, that between the periods of the contract and the defendant’s refusal, two or three brigs arrived with bagging. — ■ Upon being cross examined, Mr. Bryan said, that some of the bagging was better than other parts of it. It was of two or three qualities. The. defendant never objected to the quality. Some of the bagging measured forty, some forty-one inches, more or less than forty inches. The defendant, after the contract, came to Mr, Haslett1 s. store, and said he would take the bagging, and ordered it to be turned out 5 some of it was turned out according to bis order, ’ and carried as far as the pavement before the door; be said that before the whole of it was turned out, the de- • fendant objected to receiving it, alleging he had bought it for forty inches, and it was not so. The witness had delivered the bill to the defendant, before he ordered the bagging to be turned out of the store.
    Mr. Haslett, the agent of the plaintiffs, swore, that the defendant was a long time bargaining about the cotton bagging before he agreed to take it; that he tras tired of his repeated offers, and that at last the defendant said, he would give 12 1-2 cents for it. The witness answered he would consult his principals, v/hp were upon the spot., He did so, and replied hé would take 13 cents, at which price the defendant accepted it. The witness was never asked about the width. During the negociation, the der fendant went into the room where the bagging was, with a. yard stick, and remained there some time. He examined the bagging during four or five days, f The witness never sold the bagging for any particular width, but shewed to the defendant the invoices which descrided it as being of 40 inches. The bagging belonged to the plaintiffs in certain proportions which he described. The - account annexed to the writ was a correct one. When the bagging was sold to the defendant, the price was very low, less than the sterling price. The witness had measured the bagging, some oí wh’ch was more that 40 inches, and some a little less ; some of it 41 inches, but the^whole averaged more than 40 inches. He stated that bagging invoiced at 40 inches is never expected to be all of that width ; it will vary. f3etween tire contract and refusal of the defendant, some vessels arrived with bagging, which rendered the market for it dull, arid finally lowered its price. Upon the cfefendant’s declining to take the bagging, the witness proposed to refer the matter to two merchants, which the defendant refused. The witness received from the vendue-master, $>1053 65, leaving a balance due to the plaintiffs of $ 499 15. The sale by the vendue-master was for cash. Some of the bagging was turned out of the witnesses store by the defendants order, at which time the witness considered it to be the defendants, and would have permitted him to. carry the. whole of it away without the moiiéy being paid; but that afterwards the witness would not have delivered it without the money. The bagging which had been turned out by the. defendant’s order, stood before the door of the witness until after dark. The bagging sold by the vendue-master produced different prices, the witness having made out his account from the account of the vendue-master and his own books. The bagging was sent to vendue nearly a month after the conclusion of the contract, it is customary when a purchaser does not emiy 
      ply with the terms of a sale, to sell the goods at vendue, and to .call upon the purchaser lor the difference ; deducting commissions and expenses, for which the purchaser is liable.
    Mr. Mi//, called by the plaintiffs, said, that he bought some of this cotton bagging at vendue; that some of it was inferior, that he bought it low, having given for it from 9 1-2 to 11 1-2 cents. At the time he bought, good cotton-bagging was selling-for 17 cents.
    
      Caldwell, a vendue-master, said he sold the bagging in dispute, on the 8th of March, 1819, by the order of Mr. Haslett, on the account and risk of the former purchaser; that the gross sales, (including the parcels belonging to the plaintiffs, in both these suits,) ampunted to g 1436 28, .He understood the custom to be as stated by Mr. Haslett, where a purchaser refuses to comply with the terms of the sale; but knew no instance of its having been done,
    Messrs. Heriot £s? Miller, called by the plaintiffs, both said that they had seen the bagging bought by the defendant; that they had measured some of it, and that some of it was a little more, and some a little less than 40 inches, and that they would have bought it for bagging of 40 inches. They also both said that they had understood the custom, where a purchaser failed in his contract, to be as represented by Mr. Haslett, but neither of them knew of any instance.
    The evidence having closed, the defendant’s counsel mo-f ved for a non-suit, upon three grounds :
    1st. Because by the plaintiff’s shewing, his cause of action was not within the jurisdiction of this . court; as he ought to have brought his suit for the whole amount of the purchase money of the bagging.
    2d. Because no delivery of the articles purchased had been proved.
    3d. Because by a sale of the bagging at auction, the plaintiffs rescinded the contract between themselves and the defendant, and therefore they cannot sustain this a<* ■' •{ion.
    
      lit. Upon the first ground, which I (tfoe Recorder; overruled, I said that from the evidence, it appeared that the plaintiffs claimed from the defendant an amount which was within the jurisdiction of the court, and that this amount did not constitute a part, but the whole of their demand. I therefore could perceive no ground upon which the objection to the jurisdiction could be sustained.
    2d. In support of this objection, the defendant relied upon the HTth section of the Statute of Frauds, and upon several adjudicated cases, to shew that there had not been in this case a legal delivery. The statute says, that in a contract like this, the parties shall not be bound, except u the buyer shall accept part of the goods sold, and actually receive the same,” See. The evidence, (which in the discussion of this motion must be taken with every necessary inference against the defendant,) shews that the goods were considered as delivered to the defendant, that he acted upon such delivery, that he had measured the bagging, that after being told it remained in Mr. lladetfa store, subject to Lis risk, he ordered and had some of it turned out, which he afterwards returned, and then refused to take any part of it, alleging that the width was not according to the agreement. If the goods were such as the contract required, the statute, I thought, had been fully complied with. It was not necessary^ according to many authorities, that there should have been an actual corporal delivery. It was sufficient if the article was considered as bought and sold; that it was in a situation subject to the order of the purchaser, and that some act had been done amounting to a delivery, dr to a symbolical delivery of it. These things appeared to me to have been established by the witnesses.
    I then commented on the cases relied upon by the defendant’s counsel. The case of Kent vs. Huskinson, ('Z ¿Jew. and Pul. 233,) determined that there had been no delivery; because it was not proved that the terms of the agreement had been complied with by the seller, on the contrary, the reverse was fairly inferrable; therefore the acceptance was deemed incomplete. In the case before us, the testimony, without any contradiction, shewed that the goods answered the description, even according to the defendant’s own statement of it.
    In the case of Bennet vs. Hull, f 10 Johns. 364,) there toas nothing like a delivery, actual or constructive. Bandeau vs. Wyatt, (2 II. Bh 63,) is to the same effect, so far as it. is applicable ; but the gist of the cause was altogether different. Cooper vsl Elston, (7 Term. Rep. 14>,J is merely upon the general principle contained in the Statute of Frauds.
    None of these cases describe what does or does not constitute a delivery; therefore they do not illustrate the present inquiry. This ground was overruled.
    3d. The position contained in this objection I thought correct. After having sold the goods at auction on account of the purchaser, the plaintiffs could not recover against him the price of the goods sold. Had this been such an action, in my opinion it could not have been maintained ; but it was not so : the suit was instituted to recover from the defendant a'sum of money, because by his act in not performing his contract, the plaintiffs had been damnified.
    It was further contended that the plaintiffs had no right to make the sale at auction, that his doing so was unauthorized and illegal, and that his only proper course was to bring an action of assumpsit for the price of the commodity sold. I did not think that the testimony was sufficient to establish the existence of a custom prevalent in this state, to sell goods at public auction on account and risk of the purchaser, where he had refused to comply with the terms of the contract. If usage was not to be relied upon, the question was, whether this act was a legal one ? No case was ' cited to shew that this mode could not be resorted to; and I was unable to discern any reason why it should not be. The purchaser could prevent any sacrifice by observing his agreement; if he did not,' where the contract, as in this case, ivas for cash, would if be ail adequate remedy to sue for the purchase money ?— Would not this, in some cases, be hazardous ; as between' the sale and the recovery, the defendant might become insolvent, and the goods, upon which the sdler had a lien, might have become deteriorated, or if of :t perishable nature, valueless ? I was under a conviction that authority existed, which warranted this mode of procedure, but my memory did not enable me to cite the case. Since the trial I have found it in 5 Johns. Rep. 395, the case of Sands and others vs. Taylor and others. I did not think that the power given by the act of Assembly of 1785, to re-sell,:1 where the terms of sale, at public auction, were unfulfilled, necessarily implied that this power was limited to such sales. The act might have been declaratory oí the common law, or the clause might have been inserted for the purpose of regulating the mode and manner of such resales, in order that purchasers might not be surprised.— This objection was therefore overruled.
    The case was then argued before the jury,-when the defendant’s counsel insisted:
    1st. That there had been no delivery.
    2d. That the plaintiffs had no right to sell the goods at auction in the manner in which they did ; and if they had this right, that the defendant was not liable for the commissions, &c. of the vendue-master; but, that at all events, be ought to be credited for the gross sales.
    I summed up the evidence tó the jury, and stated to them that I thought the plaintiffs had made out their case; that in my opinion a sufficient delivery had been proved ; that the plaintiffs had a right to'sell the goods at public auction, under the circumstances which the jury had heard, and that if they had this right, the expenses Of the-sale ought to be borne by the defendant.
    The jury found' a verdict for the plaintiffs.
    Previously to the discussion of this case, a motion was made to cancel the bail-bond, upon the ground, that th" affidavit set forth a debt due to another person than the plaintiffs.
    The motion was overruled.
    A notice was served upon me, that a motion would be made for a hon-suit, on the grounds,
    1st. “ That the cause of action is beyond the jurisdiction of this court.”
    2d. “ That no delivery and acceptance of the goods were proved, sufficient to satisfy the provision df the 17th section of the Statute of Frauds.”
    3d. “ That the resale of the goods by the plaintiffs was a recision of the contract by them, and they can now maintain no action against the defendant.”
    “ Should the Constitutional court refuse a nonsuit, a new trial will be moved for, on the ground, that as the plaintiffs constituted themselves the agents of the defendant, against his consent, they are entitled to make no charge against him under this assumed agency ¿ and therefore the defendant was entitled to credit for the gross amount of the sales at vendue, made by order of the plaintiffs. And the. constitutional court will be further moved to cancel the bail-bonds in these cases, on the ground, that the affidavits on which the bail-bonds are founded, are made of a debt due to another person than the plainliffs.”
   Mr. Justice Nott

delivered the opinion of the court.

With regard to the motion to discharge the bail, a majority of the court are of opinion, that stating the defendant to be indebted to the agent as attorney, is merely shewing that he became indebted to the plaintiffs through him, or became indebted to him for their use, which enabled them to bring the action; that the objection goes more to the form than the substance of the thing, and ought not therefore to be supported.

On the question of jurisdiction, I concur with, the Judge below. There is no distinct evidence by which the jurisdiction can be marked of airy greater damages being sustained by the plaintiffs than the difference between the first contract and the sale at auction. And even if they might have recovered more, they were at liberty to demand.less. The sum sued for is clearly within the jurisdiction of the court. This motion, therefore, cannot prevail.

The two remaining are the most important questions.— The Statute of Frauds says, the parties shall not be bound, “ except the buyer shall accept part of the goods sold, and actually receive the same,” &c. The object of the Statute was (as it professes) to prevent frauds and perjuries. The mischief to be apprehended was that in-cohate and imperfect contracts might be established on loose declarations against the real intention of the party to be made liable. It therefore requires some unequivocal act of consummation to be done which cannot be mistaken. The Recorder reports to us “ that after being told, it remained in Mr. Haslet?s store subject to his risk; he ordered and had some of it turned out, which he after-wards returned, and then refused to take any part of it.” I think that may fairly be construed into such acceptance, and receipt of the goods as was contemplated by the Statute. When we consider the course of trade in this country, a different construction would-be destructive of all confidence, and lead to incalculable mischief. A waggon or boat load of cotton or flour is brought to a merchant’s door, or to the wharf for sale; a purchaser presents himself, examines the cotton, and probes the flour barrels to the bottom, he then agrees upon the price, and orders the article to be laid at his door or upon the wharf, as the case may be. Shall he, after giving the seller all this trouble, capriciously refuse to carry his contract into effect ? Such a construction would render the Statute subservient' to the very mischief which it was intended to prevent. I think, therefore, that there was sufficient evidence of acceptance arid receipt of the goods to authorize the verdict.

The last is the most difficult question. I do not find any case authorizing such a course of proceeding, -except the case of Sands and others vs. Taylor and others. (5 Johns. Rep. 395.) Rut there do not appear to be any cases dj-s eedy opposed to it; nor do I perceive that it violates any known principle of law. %ime respect is due to the testimony of the witnesses, wh$ said that such was the usage in Charleston, although they could not mention any particular case where it had been done, and although it might not be sufficient to establish such usage. Goods might in such' a case be declining in value, or perishing in the hands of the seller, if of a perishable nature. I think, therefore, it was a course of proceeding equally beneficial to the seller and the buyer, and one that ought to be supported. Upon the whole, I am satisfied with the opinion of the Recorder, for the reasons which he has given, and with the verdict of the jury who found according to his directions.

The motion for a new trial is therefore refused.

Justices Gantt, Jo-hnson and Huger, concurred.  