
    Dorsey v. Pike.
    
      (Supreme Court, General Term, Fifth Department.
    
    January 11, 1889.)
    1. Principal and Agent—Evidence op Relation—Husband and Wipe.
    Where it appears that defendant’s husband was her agent in operating a quarry;, and marketing the stone taken from it, the jury would be justified in finding that. he had authority to purchase machinery for use in the quarry.
    2. Frauds, Statute op—Sale op Chattels—Possession op Purchaser.
    The fact that a machine was in the possession, under a lease, of one sought to beheld as a purchaser, at the time of the contract of sale, is not sufficient to satisfy! the statute of frauds relating to sales of chattels.
    Appeal from Monroe county court.
    Action by James Dorsey against Bosella E. Pike for the price of machinery-sold. Defendant appeals from a judgment entered on a verdict for plaintiff,, and from an order denying a motion for a new trial.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.. John Desmond, for appellant. Henry J. Sullivan, for respondent.
   Bradley, J.

The action was brought to recover the price of an engine,, boiler, and pump, with appendages, alleged to have been sold and delivered by the plaintiff to the defendant, and to have been purchased by her. The latter denied the sale and purchase. It appears that, the defendant was the; owner of a stone-quarry, in which she was engaged in quarrying stone for market; and that early in July, 1886, James B. Pike, the husband of the defendant, rented of the plaintiff this apparatus, to use in working the quarry, and it was put in use there for drilling and pumping. The plaintiff claimed, and gave evidence tending to prove, that in the forepart of the following August an agreement was made between him and the husband, by which the-plaintiff agreed to sell, and he agreed to purchase, at the price of $250, the-apparatus to use in the quarry. This is contradicted by evidence on the part of the defendant, and in her behalf further evidence was given, tending to-prove that the husband had no authority from the defendant to make such purchase on her account. The burden of proof was with the plaintiff to show that the sale was made, and that the husband was authorized to make the purchase for the defendant. In view of all the circumstances appearing by it, the evidence presented a question of fact upon the subject of the authority of the husband, and permitted the conclusion that he was the defendant’s agent in the business of operating the quarry, and marketing the stone taken from it; and upon finding that fact the jury were justified in the further conclusion that he had authority to purchase for her the machinery to be used in working the quarry.

The alleged agreement of sale was evidenced by no writing, and no payment was made of any part of the purchase price. It is therefore contended on the part of the defendant that the agreement was within the statute of' frauds, and void. 2 Itev. St. p. 136, § 3. There was no act of delivery and acceptance at the time the alleged contract was made, but the property was then, at the quarry, under an arrangement with the husband by which the plaintiff had rented it for use there; and, assuming that the husband was such agent, and rented it for the defendant, the property was then in her possession as lessee. Upon the subject of delivery and acceptance, the trial court charged the jury that the husband then had the possession of the engine, either in his-own right, or as agent of his wife; and that, if it was then understood and agreed between the parties that there was or should be a sale, “that sale was a valid sale, and the only question remaining for you to determine is whom the sale was made to;” and that, “if he had the entire possession, of course-he could not get any more possession, and there was no necessity of any writing, no necessity of any payment, or necessity of any further delivery.” The-view of the court evidently was that no act further than the making of the oral agreement of sale and purchase was essential to its validity, and to render-the contract effectual, if the property was then in the possession of the party in whose behalf it was made as purchaser. The defendant’s counsel took exception to the proposition so charged. The statute requires to support such a contract a subscribed memorandum of it in writing, unless the buyer shall accept the property, or some part of it, or at the time pay some part of the-purchase money; and its purpose was not to permit the validity of such an agreement to rest merely in words. The design of the statute was in contracts of this character, having the importance represented by the requisite-price of the property, to guard against misunderstanding of the parties and. perjury, by requiring, in the absence of any writing subscribed by the party to be charged, that a portion of the purchase money should at the time be paid, or that then or thereafter the purchaser should by some act accept and receive-some of the property. The opportunity and expressed purpose to accept is not sufficient. Shindler v. Houston, 1 N. Y. 261.

Assuming that the machine was in the possession of the defendant at the time the agreement to purchase was made, and that the husband, as her agent, made it, those facts alone were not sufficient to give validity to the contract. To hold otherwise would have the effect to render the mere words of the parties to such a contract effectual, and the purpose of the statute would be defeated. Tlie then possession was in no manner produced by or derived from. ■such contract, but was lawfully taken and held under another and independent arrangement between the parties; and until the purchase was evidenced by •some act of acceptance, under or in pursuance of the agreement to buy, no valid sale would be accomplished. This is clearly the expressed import and .purpose of the statute, and such is the unbroken current of authority as to its effect. The mere fact that the property was in the possession of the defendant at the time of making the contract furnished ño evidence of acceptance in its support. Edan v. Dudfield, 1 Q. B. 302; Lillywhite v. Devereux, 15Mees. & W. 285; In re Hoover, 33 Hun, 553; 1 Benj. Sales, (Corbin,) § 173. But there must be some act or conduct on the part of the buyer, in respect to the property, which manifests an intention to accept it pursuant to or in performance of the contract of sale and purchase, which the parties have sought to make; and, when the evidence is such as to warrant that conclusion, the question is usually one of fact for the jury. Parker v Wallis, 5 El. & Bl. 21; Caulkins v. Heilman, 47 N. Y. 449; Stone v. Browning, 51 N. Y. 211, 68 N. Y. 598. This case was not entirely without evidence upon the question. There was evidence tending to prove that some use was made of the machine at the •quarry,, not only after the alleged contract of sale was made, but after Mr. Pike had notified the plaintiff that it was subject to the order of the latter, and would be returned to him at such place in Kochester as he might designate. 'This notice was given two weeks after the alleged purchase, and apparently indicated a purpose to terminate the arrangement under which the apparatus •had been taken, and it in terms imported no intention to accept or retain it under the contract of sale; and whether any act on the part of the defendant’s ■agent (assuming her husband was such) in the control and use of the machine, after such verbal agreement was made, was characterized by his intent to accept it in observance and execution of such contract, was a question for the jury; and to enable them to reach such conclusion, and thus give validity to the contract as one of sale, the fact must fairly have the support of evidence. We •do not here intend to express any view upon the weight of evidence on that •subject; but so far as related to the use made of the apparatus after the plaintiff was so notified of the purpose to terminate the arrangement for its service, and return the property to him, there'was some evidence on the part of 'the defendant to the effect that- such use was applied to pumping water from ■a place mentioned, in order to'remove a pipe connected with it, and with a view only to take out and remove the pump. This may have been consistent with no intent to accept the property as a purchaser; but, in view of all the •evidence upon that subject, we think the question was one of fact for the jury.

The suggestion of the plaintiff’s counsel that the question raised by the exception before mentioned was obviated by other portions of the charge of the ■court does not seem to be supported. The part of the charge in question is not qualified, necessarily or in fact, by any instruction given to the jury. So ffar as appears, they were permitted to understand that the fact of possession by the defendant of the property at the time of making the contract by her •agent (if so made) was sufficient to render the contract of sale valid. While it is true that, in view of such possession, nothing further was required of the plaintiff, by way of delivery of the property, the matter of acceptance requisite to the validity of the contract was dependent wholly upon the voluntary ■act of the other party to such contract. It is deemed unnecessary, for the purposes of another trial, to express consideration of any other question presented on this review. The j udgment and order should be reversed, and a new trial granted, costs to abide the event. All concur.  