
    *McKnight v. Dunlop.
    
      Statute of Frauds. — Sale of goods. — Damages.—Practice.
    A part delivery, several months after the making of a parol contract for the sale of chattels, and an acceptance thereof, under the agreement, renders it binding ; and the purchaser’s right of action for a non-delivery of the residue, is not destroyed, by a subsequent parol agreement for the sale of a quantity of goods, including those already delivered.
    The measure of damages for a breach of a contract to sell and deliver goods, is the difference between the contract price, and the value at the time of ' performance.
    A right of action already vested can only be destroyed by a release, or by an accord and satisfaction
    If improper evidence be received, reserving the question of its admissibility, without objection, it is not error, if the jury be subsequently instructed to disregard it.
    Appeal from the general term of the Supreme Court, in the fourth district, where a judgment entered upon a verdict in favor of the plaintiff, in a suit in the Mayor’s Court of Albany, had been affirmed. (For a former report of this case, see 4 Barb. 537.)
    This was an action of assumpsit, by McKnight against Dunlop, for the breach of a contract to deliver 5000 bushels of old barley malt. The defendant pleaded the general issue, and gave notice of special matter.
    In June 1844, the plaintiff made a contract with the defendant, *for the purchase of 5000 bushels of old barley malt; the price to be governed by the first sale made by the defendant, in the city of Albany; the plaintiff to pay, by his note at three months, whenever $1000 worth should be delivered. Dunlop delivered about 1400 bushels of the malt, at different times, in August and September 1844, and in the latter part of September, refused to deliver any more, under his contract. A demand was proved for the balance of the malt agreed to be delivered; the price of malt advanced shortly after the 1st June.
    On the close of the plaintiff’s testimony, the defendant moved for a nonsuit, on the ground that no valid contract had been proved; but the motion was denied, and the defendant excepted.
    The defendant then showed, that after the refusal to deliver any more malt, under the contract, the parties had made another contract for 3000 bushels, to include what had previously been delivered. This contract was to have been reduced to writing, but was never done so.
    In the course of the trial, the plaintiff offered to show, that he was compelled to stop work at his brewery, in consequence of the defendant’s refusal to deliver the malt, whereby he had sustained considerable damages. This was objected to, by the defendant, and the testimony was received, under objection — the recorder reserving the question of its relevancy until a subsequent stage of the cause. No objection was made to this course; and after the close of the evidence, the recorder ruled that such testimony was irrelevant, and instructed the jury to disregard it.
    The recorder charged the jury, that if they found, that the contract for 5000 bushels of malt had been made between the parties, and the defendant had delivered any part of it, under the contract, he was bound to deliver the whole; and the *plaintiff was entitled to recover damages for the nondelivery of the residue. That the measure of damages was the difference between the contract price, and the market price at the time of the defendant’s refusal to deliver.
    The defendant’s counsel requested the court to charge that if the jury found that a new agreement had been made between the parties, whereby the defendant was to deliver to the plaintiff 3000 bushels of malt, including that already delivered, the former contract was rescinded, and the plaintiff was not entitled to recover damages for the non-fulfilment thereof. The recorder refused so to charge, and an exception was taken.
    There was a verdict for the plaintiff for $581.82; and the judgment entered thereon having been affirmed by the supreme court, on writ of error, the defendant took this appeal.
    
      Stevens, for the appellant.
    
      Hill, for the respondent.
   *Paig:e> J-

It is objected, on the part of the defendant, to the plaintiff’s recovery, that the delivery of part of the malt, after the time of making the contract, did not take it out of the statute of frauds. The revised statutes (2 vol. 136, § 3), provide, that every contract for the sale of any goods, &c., for the price of $50, or more, shall be void, unless — 1. A note or memorandum of the contract be made in writing, and subscribed by the parties to be charged thereby: or, 2. Unless the buyer shall accept and receive part of the goods, &c.: or, 3. Unless the buyer shall, at the time, pay some part of the purchase-money. If part payment of tho purchase-money is relied upon, to except the contract from the operation of the statute, it must, by the terms of the statute, be made at the time the contract is entered into. But wlien the validity of the contract depends upon the acceptance and receipt of a part of the goods, the statute omits to require the acceptance and receipt to be at the time of the making of the contract,

The old statute of frauds did not specify the time when either the goods were to be accepted and received, or a part of the purchase-money was to be paid. (1 Rev. L. of 1813, 79, § 15.) The chapter of frauds, as reported by the revisers, required as well the acceptance and receipt of a part of the goods, as the payment of a part of the purchase-money to be at the time of the making of the contract. The legislature struck out of the subdivision as reported, in relation to the acceptance and receipt of a part of the goods, the words “ at the time” ; which confined the acceptance and receipt of the goods to the time the contract was entered into. (See Report of Revisers.) This action of the legislature is a very clear indication of their intention to provide, that a contract for the sale of goods, for the price of $50 or more, should be valid, if a part of the goods sold were accepted and received, under and in pursuance of the contract, although after the time of the ^'making of it. And this is the judicial construction which has been given to the statute.

In Sprague v. Blake (20 Wend. 63), Judge Cowen, with the concurrence of his associates, held, that the statute does not require that the part acceptance of the goods should be at the time the oral contract is made. He says, “the authorities upon the statute of frauds allow of an oral order at one day, and an acceptance at another,” by the purchaser or his agent. The cases of Chaplin v. Rogers (1 East 192), of Vincent v. Germond (11 Johns. 283), of Jennings v. Webster (7 Cow. 262), and of Outwater v. Dodge (16 Wend. 397), are all authorities to show that a subsequent acceptance and receipt of a part of the goods, under a parol contract, make the contract good, within the statute of frauds.

It was held by the supreme judicial court of Massachusetts, in Thompson v. Alger (12 Met. 435), that even the payment of a part of the purchase-money, after the time of entering into the parol contract, takes the contract out of the operation of our statute of frauds. That was an oral contract, made in this state, for the purchase of stock of the Hudson and Berkshire Railroad Co. Dewey, J., in that case, says, that before payment of a part of the purchase-money, neither party would be bound by the terms of the oral contract. “ The vendee would be under no obligation to make a payment, and the vendor under no obligation to receive one: but when actually made and accepted, with the full concurrence of both parties, then the contract takes effect; then, a part payment of the purchase-money has been made; and then, the parties have made a valid contract.” If the contract is not in law deemed to -be made, until the part payment of the purchase-money, and the previous invalid oral agreement is merely referred to, to ascertain the terms of the subsequent valid contract, the decision of the supreme judicial court of Massachusetts may be regarded as sound. This view of the case was taken by that court in Whitwell v. Wyer (11 Mass. 6), and in Damon v. Osborn (1 Pick. 480).

In Saunderson v. Jackson (2 Bos. & Pul. 238), the court connected a letter from the vendor to the *purr chaser, with a previous memorandum not signed by the parties, stating the terms of the agreement, in order to make a sufficient written note or memorandum to take the case out of the statute of frauds. The oral contract may be considered good, as a proposition; and the subsequent delivery and acceptance of the whole, or a part of the goods, as an acceptance of the proposition, and the final conclusion of a valid agreement. In such case, there being no statutory inhibition, it is admissible to connect the delivery and acceptance with the previous proposition or oral contract, in order to make out a valid contract. In this case, the jury having found that the part delivery of the malt, between the latter part of August and the latter part of September, was made under the previous oral contract for the sale of 5000 bushels of malt; that contract was, therefore, valid, within the statute of frauds.

The charge of the recorder was in all respects correct. His instruction to the jury in relation to the rule of damages, was in strict accordance with the authorities. The plaintiff was entitled to recover as damages the difference between the contract price of the balance of the malt which the defendant refused to deliver, and its market value at the time of the refusal. (9 Wend. 134-5; 7 Hill 61-2; 7 Cow. 681, 687; 24 Wend. 322.)

The recorder committed no error in refusing to charge as requested. Before the pretended new contract for 3000 bushels of malt was made, the previous contract had been violated by the defendant, and a right of action had accrued to the plaintiff for such violation. Wherever a right of action has once vested in a party, it can only be destroyed, by a release under seal, or by the receipt of something in satisfaction of the wrong done. (23 Wend. 309; 1 Hill 486, 488; Willoughby v. Backhouse, 2 Barn. & Cres. 821; 5 Hill 77-8.) If the recorder had charged that the new agreement rescinded the previous contract, and was a bar to the plaintiff’s recovery of damages for its violation, he would have C0mm^e<^ an ^rror, tbe plaintiff’s claim to damages formed no part of the consideration of the second agreement. Prior to the making of that agreement, the previous contract, by the defendant’s violation, was, at the election of the plaintiff, at an end; and in lien of his right to take the benefit of the contract, the plaintiff had a perfect right of action against the defendant for his refusal to fulfil it. The first contract having been put an end to by the defendant, it was competent for the plaintiff, to enter into a new agreement with him, without a waiver of, or prejudice to, his remedy for the violation of the previous contract.

It is objected, that the recorder received, on the trial, improper and irrelevant testimony in relation to the plaintiff’s damages; and that his subsequent withdrawal of such testimony from the consideration of the jury, did not cure the error. I am inclined to believe, that if a judge, on the trial of a cause, on further deliberation, strikes out improper evidence previously received, or instructs the jury to disregard it, the error committed in receiving the evidence will be cured. But whatever may be the correct rule on this subject, I think, the defendant cannot now object that the recorder committed an error in receiving the illegal evidence. When this evidence was objected to, the recorder did not pass upon the question of its admissibility, but expressly reserved that question for further consideration; to this course, suggested by the recorder, no objection was made by the defendant. The recorder having subsequently decided the testimony to be illegal, and having excluded it from the consideration of the jury, the defendant is now precluded from insisting that he committed an error in receiving the evidence. If the defendant had apprehended any injurious effect on the minds of the jury from the evidence, he should have called upon the recorder, when the evidence was offered, to decide, before it was received, whether it was legal or illegal; and should have objected to his receiving the evidence, and reserving the question of its admissibility for subsequent decision.

*1 am of the opinion, and such is the opinion of the court, that the judgment of the supreme court should be affirmed with costs.

Foot, J.

An examination of the facts and the law of this case has led me to a conclusion, that the views which the supreme court have taken of it are correct. A subsequent delivery and acceptance of a part of the malt, under the contract, as found by the jury, is sufficient to take the case out of the statute. (Sprague v. Blake, 20 Wend. 61, and cases there cited; also Vincent v. Germond, 11 Johns. 283.)

The instruction asked for by the appellant, in regard to the second agreement, did not go far enough to cut off the respondent’s right of recovery on the first one. The rule is well settled, that when a right of action has accrued, it can only be destroyed by a release under seal, or the acceptance of something in satisfaction. Admitting, as claimed by the appellant, that a new agreement may be substituted in the place, and in satisfaction of a previous one, already broken, the instruction asked, failed to reach the gist of the matter, viz., that the new agreement was made and accepted in lieu and satisfaction of the prior one; it only covered the fact, that the new agreement embraced the malt already delivered. Nor, on the proof, could it go further, as there was none to show that the parties intended, by the new agreement, to embrace a satisfaction of the damages for the breach of the former one.

The testimony provisionally admitted on the trial, under objection, relative to the damages, was seasonably and distinctly excluded from the case, and the question of damages submitted to the jury on proper grounds.

Judgment affirmed. 
      
       See Allis v. Read, 45 N. Y. 142, 150.
     
      
       This apparently overrules Seymour Davis, 2 Sandf. 239, and Deming v. Kemp, 4 Ibid. 147. It is suggested, however, in Boutwell v. O’Keefe, 32 Barb. 437, that this conflict of decision may be rather apparent than real; depending on the question whether the subsequent delivery, in the absence of affirmative proof, will be presumed to have been made under the parol contract. And see Sale v. Darragh, 2 Hilt. 184, where Seymour v. Davis is disapproved.
     
      
       Parsons v. Sutton, 66 N. Y. 92; Cahen v. Platt, 69 Ibid. 348.
     
      
       See Burst v. Second Avenue Railroad Co., 72 N. Y. 542.
     