
    George F. Vietor et al., Pl’ffs and Resp’ts, v. Louis S. Stroock et al., Def’ts and App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 20, 1889.)
    
    1. Sale—Statute of frauds—When delivery and acceptance must bb PROVED.
    Where a sale is made of merchandise amounting to more than fifty dollars, and there is no memorandum thereof made in writing, to take it out of the statute of frauds, plaintiff must prove not only a sale, but delivery and acceptance; but where the identical goods purchased were, as requested by defendant, delivered into his possession, the plaintiff may prove an acceptance of them not only after delivery, but simultaneously with it or preceding it.
    
      2. Same—Bulb as to proof of acceptance.
    This rule as to proof of acceptance before delivery applies only where-the goods were specifically designated and set apart at the time of purchase and acceptance, so as to leave no further act to be done to determine-their identity.
    3. Same—Rot made by description or sample—Proof of sale—Price,, DELIVERY AND ACCEPTANCE OF GOODS PURCHASED IS SUFFICIENT.
    Where the sale of the goods had not been made by description or sample’,, but the very goods sued for had been examined and agreed to be purchased at the price named, and the same goods as purchased had been delivered, it matters not what name is applied to them in the bill of sale, in the complaint in the action or in the bill of particulars under the complaint; but when the plaintiff proves the sale, price, delivery and acceptance of the very goods purchased,, he is entitled to recover their price. So that evidence on the part of the defendant was rightfully excluded, when he offered to show that the goods were not “chinchillas," although billed as “chinchillas,” and although the complaint alleged and the bill of particulars recited the sale and delivery of "chinchillas,”
    Appeal from a judgment of the general term of the city court affirming a judgment entered on the verdict of a jury at a trial term in that court, and from an order denying a new trial.
    The facts sufficiently appear in the opinion.
    
      Jacobs Brothers (Noah Davis, of counsel), for app’lts; Blumenthal & Hirsch, for resp’ts.
   Bookstaver, J.

The complaint alleges that on the 4th of March, 1880, the plaintiffs sold and delivered to the defendants goods, wares and merchandise consisting of ten cases of chinchillas at an agreed price, which defendants had failed and neglected to pay. The answer originally interposed by the defendants raised two issues, a sale by sample and a breach of warranty. Two trials were had under'these issues in the court below, but resulting in a verdict for defendants, and both judgments entered on the verdict were reversed on appeal to the general term of that court. Defendants were then allowed to amend their original answer by withdrawing the defenses of breach of warranty and sale by sample, and interposing a general denial. This materially changed the issues; by the first answer the sale and delivery were admitted, and by the second both were denied. Under the issue so framed the last trial was had, and to maintain their action it was necessary for the plaintiffs to establish the sale alleged in the complaint, the agreed price, the delivery, and as the amount was more than fifty dollars, and there was no memorandum of the sale in writing, an acceptance of the goods by the defendants in order to take the case out of the statute of frauds. On the trial, defendants did not contest the price nor the delivery of the ten cases of goods; but they did very strenuously contest the sale claimed by the plaintiffs, and also the acceptance of the goods delivered.

Plaintiffs’ testimony tended to show that, at their request, one of the defendants came to their store and partially examined a certain specific lot of goods, called chinchillas, contained in ten cases; that there were no other goods of this kind in their store, then ; that the same defendant subsequently called again, in company with one of '.his salesmen, and was then requested to examine all, or as many of the goods as he desired, as they were to be sold “as they are,” that is, in bulk as they then stood, regardless of .imperfections or quality, all of the cases then being open; that after such examination this defendant then expressed himself as satisfied, and that he had examined all the goods he wanted to, and the price of seventy cents per yard, was then agreed upon in plaintiffs’ store; that both the defendant, who examined the goods, and his salesman said they would take them at that price, and that they were then repacked in the cases and subsequently delivered to the defendants. The latter say they remained in their possession unopened some ten days; when examined they say the goods were not of the quality they expected, and offered to return them, and plaintiff declined to receive them. On these facts a motion was made to dismiss the complaint, both when plaintiffs rested and at the close of the case, on the ground that there was no memorandum of the sale made in writing, and as it was for more than fifty dollars, to take it out of the statute of frauds plaintiffs were bound to prove not only a sale of the goods but a delivery and acceptance.

If the testimony of plaintiffs’ witnesses as to the foregoing facts was to be relied on, both the sale and delivery of the specific ten cases of goods were sufficiently proved to allow the case to go to the jury on those questions, and the only difficulty in regarding the transaction as a completed sale arises on the question of acceptance. Had what defendants said and done in regard to acceptance followed instead of preceded the delivery, then certainly enough was proved to allow that question to go to the jury also.

But it is well settled that an acceptance of specific goods, separated from the others, need not be after delivery only, but may be simultaneous with it, or precede it. McKnight v. Dunlop (5 N. Y., 537), Cross v. O’Donnell (44 id., 661), Grey v. Carey (17 Am. Rep., 583), Benj. on Sales (§§ 178, 180), and authorities cited.

It is otherwise when a part only of a larger lot is agreed to be taken, and this smaller lot is to be separated or is selected from the whole, as where twenty firkins of butter are to be taken from a lot of thirty, or thirty sheep from a flock of one hundred. Heermance v. Taylor, 14 Hun, 149.

In such cases no title passes to any particular lot until separation and delivery, and then there remains a right to object to the quality or quantity actually delivered, but obviously no such right remained in this case after delivery, because the quantity and quality had already been determined, and on delivery the title was complete in defendants, if plaintiffs’ version of the transaction is correct.

We think the motion to dismiss the complaint on this ground was properly denied.

Appellants also contend that the goods were billed as “ chinchillas,” and were so called during the negotiation for them, and that therefore they had the right to show that they were not “ chinchillas,” and the court erred in excluding evidence on this point, and they also contend that the complaint should have been dismissed because the evidence showed they were not “chinchillas.”

Had the sale been by description or sample, such evidence would have been admissible; but the evidence of the defendant and his salesman who made the examination of the goods shows such was not the case; the goods and not samples of them were examined, and the jury would not have been warranted in finding that the sale was by sample, as has been twice determined by the court below on the same evidence.

In no other aspect of the case was such testimony ad-, missible.

Except^ the questions before examined, the only other question in the case was whether the goods delivered were the identical goods purchased, and of this we think there can be no doubt from the evidence. What they were called therefore is immaterial. Both parties were on an equality; both were of long standing and skill in their business.

It is not claimed any fraud or deceit was used by the plaintiffs. Both parties knew when bargaining for the goods that they were not and could not have been genuine chinchilla, for that was selling for from three dollars to five dollars per yard in the market at the time. It must, therefore, be assumed the defendants knew they were purchasing an inferior article, which, for convenience or some other cause, was called chinchilla.” If one knowing the difference between a horse and mule, and the nature of each, should bargain with another for a mule, calling it a horse, and the identical animal should be delivered to him, he could not avoid payment on the ground it was not a horse, nor could he, on the trial of such an action, offer testimony of experts to show it was not a horse. The only question there as here, would be, was the identical thing purchased and delivered.

We, therefore, think the judgment should be affirmed, with costs.

' Allen, J., concurs._  