
    Joshua T. Blanchard, Appellant, v. Hiram P. Trim and Orlando K. Weeks, Respondents.
    Rescission of contract. Statute of frauds. Where property has been sold and delivered, and a part thereof used or appropriated by the vendee, a subsequent agreement between the parties, whereby the vendor . agrees to “buy back” the property, is not simply a rescission of the original contract, but a new contract or resale, and must be in writing, or accompanied by a delivery, to take it out from the statute of frauds.
    Where the title of the vendee has not been perfected for any reason, where there has not been a perfect delivery, where fraud has occurred, or where the contract, in any respect, remains executory, the idea of a rescission is appropriate.
    Modification of written contract by parol. The terms of a written contract, for the sale of goods, may be varied by parol, the original sale furnishing sufficient consideration for the modification
    Cases compared. The case of Salte v. Fuld (5 D. & E. 214) seems to be so far exceptional as not .to be an authority outweighing the general tenor of decisions.
    This action was commenced before a justice of the peace in the town of Saratoga Springs, on the 21st day of February, 1857, and was for taking and carrying away lumber belonging to the plaintiff. The defense was, that said lumber was the property of one J. H. Calkins, and as such had been levied upon by the sheriff under execution in favor of defendants. The justice gave a judgment in favor of plaintiff for $70.56. The case was appealed to the County Court, where the judgment of the justice was affirmed. The case was then appealed to the General Term of the Supreme Court, where the judgment was reversed, and thereupon the plaintiff appealed to this court.
    The following is a brief statement of the facts: The plaintiff sold and delivered to Calkins, in November, 1856, a quantity of lumber, and took therefor Calkins’ promissory note of $134, dated November 28, 1856, and payable at the Commercial Bank of Saratoga Springs, three months thereafter. On the 5th day of February, 1857, Calkins called on the plaintiff, told him he would not be able “ to meet the obligation when it became due,” and asked the plaintiff to buy back the lumber. The plaintiff went to Calkins’ shop and looked at the lumber, and it was then agreed between them, that the plaintiff should take it back, and should draw it away as soon as the weather would permit — Calkins agreeing to account to the plaintiff for what had been sold or used by Calkins. The, note was then in the Commercial bank, where it had been left by the plaintiff, and from which it was taken by the plaintiff on the 11th day of February, 1857. On the 9th day of February, 1857, by the direction of the defendants, and in virtue of an execution issued on a judgment recovered by them, on the 7th of the same month, against Calkins, the sheriff levied upon the lumber, the same not having been actually removed by Blanchard, from the possession of Calkins, and sold it by virtue of the execution.
    
      A. Pond, for the appellant.
    
      J. C. Hulbert, for the respondents.
   Hunt, Ch. J.

The facts in this case are substantially undisputed, and the questions of law arising upon them are the only subjects for our consideration. The lumber in question had been sold and delivered by Blanchard to 'Calk-ins, and a portion of it had been used by Calkins in hip business. Finding himsfelf unable to pay for it, he requested Blanchard to “ buy it back,” and upon an inspection of the lumber by Blanchard, in the presence of both parties, the lumber then being before them, it was agreed between them, that the lumber should be taken back by Blanchard, and that he would draw it away as soon as the weather would permit. Before the lumber was drawn away, the sheriff levied upon it, by order of the defendants, upon an execution Against Calkins.

The respondent claims that the title to the lumber did not pass to Blanchard before, the levy, for the reason that there was no actual delivery of the possession, and that the statute of frauds intervenes and declares such a sale to be void. On the part of the appellant, it is urged that the transaction was a rescission simply of an existing sale, and that, under such circumstances, the title passed to the original vendor.

As a simple sale by Calkins to Blanchard, on the 5th of February, if cannot be sustained under the statute of frauds. The delivery was not sufficient. (Shindler v. Houston, 1 Comst. 261; Baily v. Ogdens, 3 Johns. 399.)

Does this transaction amount simply to a rescission of the contract of sale, and are the provisions of the statute of frauds inapplicable to such a case % It is insisted, that such is the law; and, among others, the case of Cummings v. Arnold (3 Hete. 486) is cited to sustain the claim. In that case, the judge quotes this remark from an English report, hereafter cited, “ It is to be observed, that the statute does not say, in distinct terms, that all contracts or agreements, concerning the sale of lands, shall -be in writing; all that it enacts is, that no action shall be brought, unless they are in writing, and there is no clause, which requires the dissolution of such contracts to be in writing.” The case of Cummings v. Arnold simply decided, that the terms of a written contract for the sale of goods might be varied by a subsequent parol contract. The written agreement was to manufacture and deliver certain cloth at a fixed price per yard on eight months’ credit. An agreement was subsequently made by parol to pay cash for the goods, upon a discount of five per cent. The court held the subsequent agreement to be good. The holding was sound, and is supported by numerous authorities. The statute requires the making of the contract to be by writing, but it does not undertake to regulate its performance, nor does it say, that it shall not be varied by parol. That is left to be decided by the general rules of law and evidence. (3 Law Reports; Common Law Series, p. 272; Cuff v. Penn, 1 Maule & Sel. 21; Goss v. Nugent, 5 Barn. & Ad. 65.) Thus, in the present case, I doubt not, that the terms of payment by Calkins to Blanchard could have been modified at the pleasure of the parties, and the original sale-would have furnished a sufficient consideration for such arrangement.

I am of the opinion, however, that a transfer of the lumber by Calkins to Blanchard, after he had bought the lumber, and held it for three’months in his possession, and used a portion of it in his business, does not come within this principle. It is a resale, and not a modification or a rescission of an existing contract. Where the title of the vendee has not been perfected for any reason, where there has not been a perfect delivery, where fraud has occurred, or where the contract, in any respect, remains executory, the idea of a rescission is quite appropriate. Where the same contract, in its essentials, is altered in its details, we at once appreciate the proposition of a modification. The contract before us does not come within either of these principles. It is a new contract simply. Being satisfied that he cannot pay for the lumber as agreed, Calkins proposes to Blanchard “ to buy it back.” This language expresses the precise legal idea that the law entertains of the proceeding. Calkins, being the owner, proposes to Blanchard to sell him the lumber, and Blanchard assents to the proposition, that he should buy it back. It might have been for the same price paid by Calkins, or for a less or a greater price, without affecting the character of the transaction. This is essentially a new contract, and not a rescission or modification of an existing contract. Numerous cases are found in the books, where the question of rescission has arisen, and, in all of them that I have been able to examine, with the exception of Salte v. Fuld (5 D. & E. 214), it appears, that the property had never been delivered to the purchaser, or had been redelivered by the purchaser to the original vendor, or his agent. It was thus an executory contract simply, or a completed sale upon the new arrangement. In some cases, the question has arisen between the parties themselves, and in others the rights of creditors have intervened, but, in each of them, it will appear, either that no original delivery had been made, or that there had been an actual redelivery to, or for the benefit of, the claimant. (Sturtevant v. Orser, 24 N. Y. 538; Ash v. Putnam, 1 Hill, 310; Bisby v. Taylor, 5 id. 577; Atkin v. Barrick, 1 Strange, 165; Salte v. Fuld, 5 D. & E. 214.) In the case last cited, the goods were in the hands of the vendee’s agent, from which they had never departed, when the vendee assented to their return to the vendor. There was an evident desire in that case to rescue the goods from the hands of the assignees of a bankrupt, and to place them where they honestly belonged. Upon a careful examination of the eases, I am of the opinion, that this case must be decided upon the language of the statute relating to contracts generally, and that there was not a sufficient delivery to make the resale a valid contract. (See, also, Miller v. Smith, 1 Mason, 437; Chapman v. Searle, 3 Pick. 38.)

Judgment should be affirmed, with costs.

All concur.  