
    Christopher A. Walrath and David H. Walrath vs. John J. Ingles.
    Where, upon a sale of chattels, anything remains to be done, before the sale can be considered as complete, no title passes to the vendee, until delivery and acceptance.
    To constitute a payment as earnest, or a part payment within the meaning of the statute of frauds, there must be an actual transferí' or delivery of the thing, or the money, agreed to be given as earnest or part payment.
    The statute requires it to be paid at the time of the contract. A delivery of the thing afterwards, without acceptance, cannot operate to take the principal contract out of the statute of frauds.
    Upon a parol contract for the sale and delivery of a quantity of clover seed, by the defendant to the plaintiffs, at a specified price per bushel, amounting in the aggregate to over $60, the defendant agreed to take a barrel of sugar as part payment, to be taken away when he should deliver the clover seed, the next day. The barrel was filled in his presence, and headed up, with directions that it be put aside for the defendant and his name marked upon it; and the price of the sugar per pound was agreed upon, but neither the weight nor the aggregate sum to which the sugar would come, at the price per pound agreed on, were ascertained until after the parties separated. Held that this was not such a part payment as would take the case out of the statute of frauds.
    APPEAL, after judgment, from an order of the county court of Madison county denying a motion for a new trial, upon a case and exceptions.
    The action was originally tried in a justice’s court, and resulted in a judgment for the plaintiffs ; which, on appeal to the county court was affirmed; the plaintiffs there recovering a judgment for §74.04. The action was brought for an alleged breach of contract by the defendant in refusing to deliver to the plaintiffs a quantity of clover seed, the contract price of which exceeded §50. The defendant resisted the action upon the ground that the contract was void by the statute of frauds.
    On the trial in the county court, the counsel for the defendant moved to nonsuit the plaintiffs, on the opening to the jury, for these reasons: 1st. The contract for the clover seed, exceeding §50 in value, was within the statute of frauds, there being no part of the clover seed delivered; no note or memorandum made, and no payment being then made to apply on the contract. 2d. The sale of the sugar resting in parol, and it not to be delivered, by the terms of the contract, until the next day, was not a payment on the contract for the clover seed at the time the contract was made, so as to take it out of the statute of frauds. 3d. The plaintiffs show no cause of action.
    The court denied the motion for a nonsuit, and the defendant excepted. When the plaintiffs rested their case, the defendant again moved to nonsuit the plaintiffs, on the grounds:
    1st. That the plaintiffs had failed to prove a cause of action against the defendant.
    2d. That the evidence shows that the contract was a verbal one and for the sale of about eighteen bushels of clover seed, at $8.50 per bushel, being above $50, and that no memorandum was made or signed, no part of the seed was delivered and no money or earnest was paid to bind the bargain.
    3d. That there was no sale of the barrel of sugar by the plaintiffs to the defendant, and no delivery to and acceptance by the defendant of said sugar,- or any part of it, and that the title of said barrel of sugar remained in the plaintiffs, and never passed to the defendant.
    4th. That there was no delivery of said sugar, or any offer by the plaintiffs to deliver the same to the defendant, and no demand was made by the plaintiffs on said defendant for said clover seed, before the commencement of this action.
    5th. That the contract for the sale of the clover seed was within the statute of frauds, the value being more than $50; the contract to sell the barrel of sugar does not take it out of the statute. Nor was the sale of said barrel of sugar a payment on said clover seed so as to take it out of the statute of frauds.
    6th. The contract was either for the sale of the clover seed or barrel of sugar, and was never executed or carried out Thy the parties, but rested in mere words only, and was therefore within the statute of frauds, and void.
    This motion was denied by the court, and the defendant excepted.
    The facts appear in the opinion of the court.
    
      B. F. Chapman, for the appellant.
    I. The verdict in this action cannot stand, because the contract, as proved by the plaintiffs, is within the statute of frauds. (2 R. S. 136, § 3.) In this case there was no note or memorandum made, and no part of the clover seed was accepted or received; and the only question is, whether the parol contract for a barrel of sugar was a payment at the time, on the contract, so as to take it out of the statute of frauds. Ho memorandum was made by either party; the plaintiffs made no entry in their books relating either to the clover seed or the sugar; they did not give the defendant credit for the clover seed, or charge him with the barrel of sugar, or call it a payment on the contract. Ho one pretends that the defendant saw the barrel filled up, headed up, or weighed, or that he knew how much sugar there was, or what it came to. Merrills, the clerk who filled the barrel, says: “I filled it up out of a hogshead; they turned and left me; I then headed it up and weighed it.” “Ingles was in the store only a few minutes after he looked at the sugar. ’ ’ Walrath (the plaintiff) says: Merrills went to work immediately filling up the barrel; I told Ingles I would like to show him some tea; I sold defendant half a pound of tea, and he paid me for it; Merrills was busy.” This was twenty to thirty feet, at another counter. “I paid him no money, and there was no memorandum made of the contract; I did not communicate to the defendant the weight of the sugar, or how much it came to.” Hitchcock (another clerk) says: “Ingles went out of the store-room; he only staid a few minutes; I think he was in the store when the barrel was being filled; I can’t say that he saw it headed np and weighed, or knew how ranch there was, or what it came to.” Ingles himself says: “I did not see the barrel filled, or headed, or marked or weighed.” To make the contract for the barrel of sugar complete, there must bé a concurrence of the minds of the parties ; everything necessary to be done must be done in the presence of the parties, “then and there,” and at no other time or place; and the acceptance of the defendant must be by an overt act. He must not only say, but do something. (Trevor v. Wood, 36 N. Y. 307.) We claim that the barrel of sugar was not delivered or accepted, and the title did not pass to the defendant. “Where a man purchased goods of a merchant, and laid them by on the counter, marking them; and then went for a porter to take them away, it was held that this was not a delivery, and the property was not changed, no bill having been received, or money paid.” (Cowen's Tr. 52, f, 2d ed., citing 1 Dall. 171.) The rule is well settled in Rapelye v. Mackie, (6 Cowen, 250, 253.) “The principle that runs through aE the cases is, that where something remains to be done, as between buyer and seller, or for the purpose of ascertaining either the quantity or price, there is no deHvery.” In Outwater v. Dodge, (7 id. 85,) the court say, at page 87: “Where anything is to be done by the vendor, in order to ascertain the value, quantity or quaEty of the goods, the deEvery is not complete.” (15 John. 349. 2 M. & S. 397. 5 Taunt. 621. 3 John. 399, 420, 421, per Kent, Ch. J.) The case of Kent v. Hukinson, (3 B. & P. 233,) shows that deEvery merely, without ultimate acceptance affirming the contract, wiE not take a case out of the statute. (1 Comst. on Cont. 101.) In Ward v. Shaw, (7 Wend. 404,) the court say: “In the sale of personal property, where anything remains to be done, before the sale can be considered as complete, whether to be done by the vendee or vendor, as between the parties themselves, the right of property does not pass, although the property itself is placed in the possession of the vendee.” In Fitch v. Beach, (15 Wend. 221,) Bronson, J., says, at page 222: “That the title does not pass where anything remains to be done between the parties, for the purpose of ascertaining either the price or quantity of the article sold, is so well settled, that cases need hardly be cited in support of the doctrine.” In Stevens v. Eno, (10 Barb. 95,) Gridley, J., says: “No sale can be perfect, and no property pass to the purchaser, when any act remains to be done by the vendor, such as weighing, measuring or counting out of a common parcel.” (Long on Sales, 237.) Accordingly, where hay in the stack was sold, by a school collector, under a tax warrant, (three tons for $24,) but was not delivered, the quantity sold being mixed with other hay of the owner to be weighed off or otherwise separated from the general mass, by the purchaser, at a future time, held that the property, or the hay, did not pass to the purchaser. In Evans v. Harris, (19 Barb. 416, 426,) the court say: “The plaintiff must show how the goods were delivered. If anything remains to be done, as counting, weighing, &c., no title passes. Marlring goods is an equivocal act, and may be for the purpose of taking possession, or merely that of identity, or it may be evidence of acceptance. If the goods were in the possession of the vendor, the evidence of the change of possession would be still more doubtful. Marking by the vendee, may, under certain circumstances, be evidence of acceptance; but I have found no case in which it was held to be a delivery, or evidence of delivery.” In Joyce v. Adams, (8 N. Y. 291,) the court say: “ That with regard to a contract of sale, the rule was, that where anything remained to be done, or on behalf of the vendor to ascertain the quantity or price, or to put the goods in a deliverable state, the sale was not complete, and the property did not pass. ” In Kimberly v. Patchin, (19 N. Y. 330, 333, 334, Comstock, J., says: “Anactual delivery, indeed, cannot be made unless the whole is transferred to the possession of the purchaser, or unless the particular quantity sold is separated from the residue. But actual delivery is not indispensable in any case, in order to pass a title; if the thing to be delivered is ascertained, if the price is paid, or a credit given, and if nothing further remains to be done in regard to it.” At pages 438, 439, speaking of measuring or weighing the articles sold, before the purchaser became invested with the title, he says: “That may be regarded as an act remaining to be done, in which both parties have a right to participate.” “A contract to'sell 200 hogsheads of sugar, to be of four different kinds and quantities, which were specified; the sale was, moreover, at so much per hundred weight, requiring that the sugar should be weighed, in order to ascertain the price, &c., it was held that the title did not pass. I see no ground, not the slightest, for questioning the decision.” (See Outwater v. Dodge, 6 Wend. 400.) The contract for the clover seed was void, unless the plaintiffs, at the time of the sale, made a payment. Now, what did they pay? The plaintiffs say, “ a barrel of sugar.” Where was it? A part of it was in a barrel, and the balance in a hogshead, with other sugar. It was to be a shilling a pound. It had not been headed up, or weighed. No one knew how much it weighed, or came to, while the parties were together. The parties must agree, and come together, as to the weight and quantity, and price to be applied, at the time of the sale of clover seed, “then,” not after the defendant had left. Walrath swears that he never communicated to Ingles the weight of the sugar. There was no dispute, on the trial, that Ingles had no knowledge of the weighing or heading up of the sugar. Can it be possible that this can be regarded as a payment on the clover seed contract, at the time of sale ?
    II. The plaintiffs’ counsel insisted, on the trial, that the contract for the sugar was good, because it was under $50. If the contract had been for the sugar alone, it would not have passed the title, because it was not completed. But when it was designed to apply it as a payment on the clover seed contract, so as to take it out of the statute of frauds, a very different rule applies. A payment, to take the contract out of the statute, must have been offered by the one, and accepted by the other. A mere agreement to apply this barrel of sugar as a payment on the clover seed, is not enough, because the contract thus rested in words only. The contract for the sugar must have been completely executed. It -was necessary for the defendant to know, “at the time” the contract was made, how much sugar there was, and what it came to ; otherwise he could not then know what payment had been made. Filling up the barrel, heading it up, or weighing it after the defendant left the store, was not fully executing the contract at the time of making it. In Brand v. Bronk, (49 Barb. 346,) the plaintiff, on settling a partnership demand, was owing the defendant $35; it was mutually agreed, by parol, between them that this sum should be applied to cancel a demand the plaintiff had against the defendant, (on which this action was brought;) no memorandum was made, or entry in the books; the agreement was held void by the statute of frauds. (See Artcher v. Zeh, 5 Hill, 205.) In Shindler v. Houston, (1 Comst. 263,) Judge Gardiner says: “ The object of the statute was not only to guard against the dishonesty of parties, and the perjuries of witnesses, but against the misunderstanding and mistakes of honest men.” And at page 364: “The acts of part payment, of delivery and acceptance, mentioned in the statute, are something over and beyond the agreement of which they are a part-performance, and which they assume as already existing.” And at page 360: “This, I apprehend, is the correct role, and it is obvious it can only be satisfied by something done subsequent to the sale, unequivocally indicating the mutual intentions of the parties. Mere words are not sufficient. In Ely v. Ormsby, (12 Barb. 570,) the court held that “ an agreement to endorse the amount of the property upon a personal mortgage held by the purchaser against the vendor, without any endorsement being in fact made, does not constitute payment.” In Brabin v. Hyde, (32 N. Y. 519,) there was a sale of a mare and colt for $175, by B. to the defendant, for which B. was to have credit on the defendant’s books for a store debt. Credit was given on a blank leaf (not in the regular account) of one of the books. The court says: “The payment may be made in money or property, or in the discharge of an existing debt, in whole or in part, due from the vendor to the purchaser, or the extinguishment of, or payment upon, a promissory note held by the latter against the former. A new agreement to apply the purchase money to either of these objects, would not be enough, because the contract would rest in words, and nothing more.” In Teed v. Teed, (44 Barb. 96,) the plaintiff, a merchant, sold the defendant a barrel of flour for $6.50, which was charged. Afterwards the defendant sold the plaintiff, by parol, a quantity of butter, of the value of $100, to be delivered at his store. It was agreed to turn the barrel of flour as part payment on the butter contract; an entry was made on the plaintiff’s memorandum, as follows: “William Teed, dairies, 7 firkins, 18c., Dr. accepts barrel of flour on butter, $6.50.” Held no payment, to take the case out of the statute. Credit should have been given on the plaintiff’s books, and the account cancelled. (32 N. Y. 519. 25 id. 524, 525. 47 Barb. 243. 40 id. 98. 30 How. 313. 31 id. 4.)
    ITT. Ingles, by the contract, was not to take the sugar until he delivered the clover seed. It could be no payment within the statute, until it was delivered, for it rested in words only. Ingles took nothing away with him as payment on the contract, and actually received nothing. (8 N. Y. 296, last paragraph.) Goods sold for ready money were packed np for the buyer, in his boxes and in Ms presence, but remained in the seller’s premises till the buyer should call for them, held that an action for goods sold and delivered did not lie. (1 Cowen's Tr. 99, 2d ed. 1 Cr. & Mees. 314.)
    IV. The plaintiff should have been nonsuited on his opening and at the close of Ms case, for the reasons stated.
    
      Z. T. Bentley, for the respondents.
    I. Whether there was a sale and delivery of the barrel of sugar, which it was understood and agreed upon by the parties, was to apply in part payment towards the clover seed, were questions properly submitted to the jury; and there was no error in the judge refusing to nonsuit the plaintiffs upon either of the motions of the defendant’s counsel. (41 Barb. 594. See also, 2 Wait's L. and Pr. 628; 1 Seld. 41.) All questions compounded of fact and law must be submitted to the jury. (14 John. 304. 9 Cowen, 530.) These facts were substantially stated in the opening to the jury, and .were proved by the evidence of the plaintiff’s witnesses, and contradicted by the defendant’s testimony alone. Here was abundant evidence to go to the jury.
    II. There was no error in the charge of the judge to the jury. He properly submitted the questions of fact on the whole case, to them, as well regarding the sale and delivery of the sugar, as its application in part payment of the clover seed.
    TIT. It was no error in the judge refusing to charge as requested by the defendant’s counsel. In each and all of these requests the defendant’s counsel asks too much. He embraces, in each proposition, assumptions of fact wMch are in dispute, and belong to the jury to settle. In each case he decided upon the entire proposition as put forth by the defendant’s counsel. (3 Barb. 551, 552.)
    
      IY. The jury have found the facts as they are claimed to be by the plaintiffs, and it is easy to apply the law, making the sale of the sugar complete. Everything was done on the part of the plaintiffs which was to be done. The quantity was agreed upon, the price was agreed upon, it was weighed, headed up, marked “sold” to the defendant, and rolled away for him, into the room where goods were put when sold, and from whence he could “ take it away,” to use his own words, “the next day.” This in law was, and so the jury by their verdiet found as a fact, a complete sale and delivery. (Cowen's Treatise, 96, § 226. 2 Kent's Com. 492. 10 Wend. 389. 5 Denio, 379. 1 Wait's L. and Pr. 490.) This finding, and these authorities, establish a sale and delivery of the sugar as part payment of the clover seed, which takes the case out of the statute of frauds. And the finding of facts by the jury wiE not be disturbed, on a bill of exceptions. (14 John. 304.)
    Y. The rule of damages on breach of an agreement to seU goods, is the market price at the day appointed for delivery, less the contract price, when the latter is not paid. (Davis v. Shields, 24 Wend. 322. Cowen's Treatise, 640, § 1507. See also, 12 N. Y. 51; 22 How. Pr. 87; 35 Barb. 515.)
    The barrel of sugar being sold, the plaintiffs were entitled to recover the contract price, and also the difference in the contract price for the clover seed, and what the proof shows it was worth at that time.
   By the Court, Morgan, J.

The only question to be determined is, whether the contract for the sale and deEvery of the clover seed by the defendant to the plaintiffs, is obEgatory upon the defendant by reason of what took place between them at the time of the agreement. The price of the clover seed was agreed upon at $8.50 per bushel, and the value exceeded $50. The contract was verbal; but it is claimed that the plaintiff, at the time, paid some part of the purchase money by the sale and delivery to the defendant of a barrel of sugar.

The evidence authorized the jury to find that the defendant agreed to take a barrel of sugar as part payment; and he was to take the sugar away when he delivered the clover seed the next day; that the barrel of sugar was filled up in his presence, and headed up, with directions that it be put aside for the defendant and his name marked upon it; and the price per pound was agreed upon. The defendant did not leave until the barrel was actually filled and headed up. The weight was not, however, ascertained until after the defendant left the store, or the aggregate sum which the sugar would come to, at the price per pound so agreed upon. The jury were charged, in effect, that they might “find upon the evidence that. the price and quantity in bulk was agreed upon and acquiesced in” by Ingles.

There being no evidence that the quantity had been ascertained, or the total sum which the barrel of sugar would come to, at the price per pound agreed upon, before Ingles left the store, it cannot be assumed that he ever acquiesced in it or accepted the delivery of the barrel of sugar after it was ready for delivery.

Ho actual delivery was necessary to pass the title, if the weight had been ascertained and agreed to before the defendant went away. (Chit. on Cont. 333, n. 2.)

But when anything remains to be done before the sale can be considered as complete, no title passes to the vendee until delivery and acceptance. A few simple propositions taken from approved text books, will be all that is necessary to show that what was done in this case would not operate to transfer the title.

If the sugar had not been separated from the mass and identified before the alleged agreement, the title did not pass by the agreement. (Add. on Cont. 221.) Here there is very slight evidence that the sugar had been identified and put into the barrel, when the parties separated. But this is not sufficient to pass the title ; for although the subject matter of the sale may be ascertained and identified, and selected and approved by the purchaser, yet as long as anything remains to be done between the purchaser and vendor for the purpose of ascertaining the price of the article, the right of property and the risk of loss are not altered. (Id. 223.) Thus, if I sell you my corn for twelve pence a bushel you may not take it before it is measured whereby the number of bushels may be known and also the certainty of the sum which is to be paid for it; so that before that certainty is known it cannot be adjudged any good contract or agreement. (Id.)

A distinction is to be observed between a sale by measure or weight requiring the measurement or weighing to be accomplished for the purpose of determining and fixing the price, and a sale of specific goods in the lump at an ascertained price, accompanied with a representation or warranty of the weight or quantity. In the former case, the title does not pass, while in the latter case it does pass; for the mention of the quantity has no further effect than to oblige the vendor to make it good. And when the quantity is ascertained, the mere omission to add up the total contents according to weight or measure, will not prevent the right of property, and the risk, from passing to the purchaser. (Id. 225.) It would be useless to spend time to cite cases in support of the foregoing propositions, as they are elementary.

It may be that authorities can be found which hold that the parties may agree that the title shall vest and the property remain at the risk of the vendee before the quantity or price is ascertained. There was no such agreement in the case at bar ; but if there had been, I should be of opinion that the contract itself, until acceptance after the weight was ascertained, ought not be considered as part payment of the purchase price of the clover seed contracted to the plaintiff.

[Onondaga General Term,

June 29, 1869,

Bacon, Foster, Mullin and Morgan, Justices.]

To constitute a payment as earnest, or a part payment, within tlie meaning of the statute of frauds, there must be an actual transfer or delivery of the thing or the money agreed to be given as earnest or part payment. (Chit, on Cont. 348, 349). The statute requires it to be paid at the time of the contract. How then can a delivery of the thing afterwards, without acceptance, operate to take the principal contract out of the statute of frauds ? - To allow the parties to agree, by parol, upon a mode of payment to be completed afterwards, would let in the very mischief, which the statute intented to avoid.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

Hew trial granted.  