
    James Flanagan et al. plaintiffs, vs. Peter P. Demarest et al. defendants.
    1. When a contract, for the sale and delivery of goods, is divisible, and capable of a separate physical performance, a delivery and acceptance of part is sufficient, under the statute of frauds. But when the contract is indivisible, and cannot, by its terms, or physical or other impossibility, be performed in separate parts, the whole contract must be performed at one time, and there can be no such thing as a part performance.
    2. A contract for the sale and delivery of a “ cargo,” or “ boat load,” of barley, of about 9000 bushels, is an entire, indivisible contract. It cannot be separated into parts, and is incapable of part performance. Neither less nor more than a “ cargo of barley” can be tendered as performance, by the vendor. Nor is the purchaser bound to accept a cargo of less than about 9000 bushels.
    3. If, in sucha case, a cargo of 5070 bushels of barley arrives, and is tendered to ■ the purchasers, they may reject it, as not being in performance of the contract. Upon their refusing it, no right of action will accrue to the vendors. Upon a demand by the purchasers, of a cargo “ of about 9000 bushels,” the vendors, on a neglect or refusal to deliver, will be liable for a breach of the contract. But if the purchasers accept and pay for, a cargo of 5070 bushels only, this will be deemed either a waiver of the right to object or insist that it is not a full and complete performance of the contract, or the making of a new contract.
    4. The delivery and acceptance of a part of the goods, to take a case out of the statute of frauds, must be a part of a known and defined quantity, which can be disjoined or separated from the whole; not a part of an entire thing which it was intended should be delivered in bulk.
    5. If goods tendered, in full performance of a contract, do not correspond with the description of them in it, the purchasers should reject them. They cannot qualify their acceptance, so as to make such a delivery a mere part performance. The very act of acceptance determines the completeness of the performance.
    (Before Robertson, Ch. J., and Moncrief and Moneli, JJ.)
    Heard January 10, 1865;
    decided March 4, 1865.)
    
      The action was to recover damages for the non-delivery of a quantity of barley.
    On the 24th of October, 1862, the defendants verbally agreed to sell to the plaintiffs a cargo of Jefferson county barley, of about 9000 bushels, to be delivered before the close of navigation, at White’s malt house, in the city of New York, at $1.30 per bushel, payable on delivery. On the 18th of November, 1862, the defendants notified the plaintiffs of the arrival of a cargo of barley, Mr. Simons, one of the defendants, saying to the plaintiffs, “ the barley, is in.” The plaintiffs sent a measurer to measure the barley. The defendants delivered the cargo of barley at White’s malt house, and a bill for the cargo, according to the measurer’s return, which was paid by the plaintiffs, and which was as follows :
    “ New York, Nov. 19, 1862.
    M. Flanagan, Wallace & Co. bought of Demarest & Simons, commission merchants in grain, flour, feed and provisions, 32 Moore street,
    5070 bush, barley, $1.30,.....$6591.05
    
      \ meas. ..... 12.56
    .■6605.61 '
    5 days demurrage, ...... 80
    $6683.61
    Eec’d payment, Demarest & Simons.”
    At the time of paying this bill, the plaintiffs told the defendants that they did not accept it as a fulfillment of the whole contract, but only'in part delivery of the contract. Nothing was said by the defendants. They took the. money, and receipted the bill. The plaintiffs demanded the balance of the barley, and on refusal they sued the defendants to recover the difference between the contract price and market value. One of the plaintiffs testified that he called upon the defendants after navigation closed ; that one of the defendants talked about the parties whom they sold for, and said he would write to them, and that he, the plaintiff, agreed to wait until he heard from them.
    
      The judge dismissed the complaint, and the plaintiffs excepted. Judgment was suspended, and the exceptions directed to be heard, in the first instance, at the general term.
    
      8. P. Nash, for the plaintiffs.
    I. The statute of frauds did not invalidate the contract, though it was not in writing, for the reason that the buyers did “accept and receive part” of the barley agreed to be sold. There can be no question but that the barley delivered, was delivered under the bargain made at the Corn Exchange. No other bargain had been made. The. barley was delivered at the “ malt house,” and the bill was rendered at the contract price of $1.30. It is true that this court seems to have held, that to escape the statute, the partial delivery must be made at the time of the bargain, (Seymour v. Davis, 2 Sandf. 239,) but a verbal contract substantially like this was held by the Court of Appeals to be taken out of the statute, by a subsequent partial delivery of the goods, in McKnight v. Dunlop, (1 Seld. 537;) see also Boutwell v. O’Keefe, (32 Barb. 434;) Sale v. Darragh, (2 Hilt. 184.) It seems entirely clear, that if the barley delivered was delivered under the bargain previously made, and there was certainly sufficient evidence to justify the jury in so finding, the bargain was made valid for the full amount.
    II. It may be said that the plaintiffs, by proving the bill rendered to them, with the barley actually delivered, proved a written contract, which prevented them from going beyond it. (Whitwell v. Wyer, 11 Mass. R. 6.)
    (1.) But it is settled that a bill of parcels is not a written instrument, which excludes parol evidence of other matters not contained in the bill. (Harris v. Johnson, 3 Cranch, 311. Filkins v. Whyland, 24 N. Y. Rep. 338.)
    (2.) In this case the bill was not given in evidence to prove the contract, as it was in Whitwell v. Wyer. The contract was established, if it was established at all, by the evidence of the original bargain, made October 24th, and of the part delivery on the 18th November, The subsequent delivery by the defendants of the hill dated on the 19th Novembér, and receipted the 22d, could not change the rights of the plaintiffs. (Schuchardt v. Allens, 1 Wall. U. S. Rep. 359, 369.)
    (3.) The bill of parcels was not a memorandum that would have taken the case out of our present statute, and, therefore, the case of Whitwell v. Wyer cannot apply. The present statute requires the memorandum to be subscribed by the party to be charged. The defendants’ bill was never subscribed as a memorandum. It was delivered without any subscription, and the signature was simply a receipt. (James v. Patten, 2 Seld. 9.) There is no color for the pretense that the bill was ever delivered, or received, or put in evidence, as being, or as being proof of, the original bargain.
    III. The plaintiffs were ready to receive and pay for the barley not delivered, and the evidence was sufficient to justify. the jury in so inferring. The plaintiffs had paid promptly for the quantity delivered, being the larger portion of the quantity contracted for, were anxious for the residue, and frequently demanded it. As the exact day of payment was to depend on the arrival of the barley, an act for which the vendors were responsible, it was not necessary to show a sum continually on hand to meet the contract. Any evidence justifying the inference that the plaintiffs were willing to receive, and able, to pay for .the barley was sufficient. (Vail v. Rice, 1 Seld. 155.)
    IY. The bargain, as proved, was for 9,000 bushels. No particular cargo being specified, by the name of the vessel, or otherwise, the expression, “ A cargo of 9000 bushels,” or “ containing 9000 bushels,” was equivalent to load, lot, or quantity of 9000 bushels, and amounted to an undertaking that the cargo to arrive should contain that quantity. (Gorissen v. Perrin, 2 Com. B. N. S. 89 E. C. L. 681. Havemeyer v. Cunningham, 35 Barb. 515. Hale v. Rawson, 4 Com. B. N. S. 93, E. C. L. 85. Cleu v. McPherson, 1 Bosw. 480.)
    Where a particular cargo is specified, the quantity may be mere matter of description, and the purchaser be obliged to take the cargo, whether it exceeds or falls short of the quantity named. But here, if the sellers were not bound to deliver nine thousand bushels, they were not bound to deliver any quantity whatever. Had two cargoes, one of five thousand, the other of 12,000 bushels, arrived the same day, unless the purchasers could claim, at all events, the quantity contracted for, they could claim nothing, neither cargo containing the precise quantity named.
    There was in the bargain an implied warranty, by the sellers, that the cargo contemplated should contain 9000 bushels, or at least the question whether such a warranty was not implied should have been left to the jury. (See Hoe v. Sanborn, 21 N. Y. Rep. 552.)
    V. There was nothing in the evidence to justify a ruling by the court, that the acceptance of the lot delivered was a waiver of all claim for an additional quantity. When the arrival of the barley was notified to the plaintiffs, the quantity was not reported to them. It was measured as delivered, and when received, and paid for, the plaintiffs notified the defendants that it was not received in fulfillment of the contract. The cases are clear that this is no waiver. (Catlin v. Tobias, 26 N. Y. Rep. 217.) But if there was any ground for saying that there was evidence of an acceptance by the plaintiffs of the lot delivered, in full performance of the contract, the sufficiency of that evidence should have been submitted to the jury.
    YI. The point that Smith and Gilbert should have been sued instead of the defendants, is untenable. The defendants made the contract in their own names, and the plaintiffs did not know for whom they were selling, until a month after the contract. (Mills v. Hunt, 20 Wend. 431.)
    
      Bradford Howland, for the defendants.
    I. The contract, as alleged in the complaint, is void by the statute of frauds, there being no memorandum or part delivery made, or any part payment made at the time. The subsequent delivery of the cargo was.not made as a part delivery, but in full completion of the contract. It was not in its nature a part delivery. Under the statute of frauds it is clear that without that delivery there was no contract, and the defendants were not bound to deliver any barley. The delivery •formed a part of the making of the contract, and in their object and intention at the time, by that delivery, the minds of the parties must meet. (McKnight v. Dunlop, 1 Seld. 537.) The plaintiffs, who, without the delivery, are unable to make out any contract, cannot now use that delivery as evidence of an entirely different contract from that which it purports. ( Whitwell v. Wyer, 11 Mass. Rep. 6.)
    II. The contract was not, as the complaint alleges, to deliver “ 9000 bushels, or thereabouts.” Such a contract would be too uncertain as to the quantity for either party to know what were their rights or liabilities under it. Even if there were a contract for 9000 bushels, still the separate delivery of 5070 bushels and payment therefor would be construed as a separate contract. (Deming v. Kemp, 4 Sandf. 147.)
    The expression, “ about 9000 bushels,” was but a description. of the cargo, of its probable size. The contract was simply to deliver a cargo ; it was delivered and paid for. If it did not answer the description, the plaintiffs should not have received it. The rule is well established, that where an article is delivered which does not answer the description in the contract, it must be returned. (Corning v. Colt, 5 Wend. 253.)
    They had no right to accept one cargo and then claim another in addition. The defendants did not. agree to deliver them two cargoes. If the agreement had been to deliver them an ox weighing 2000 lbs., and one weighing 1200 lbs. had been delivered and accepted, the plaintiffs could as well claim that they were entitled to another ox weighing 800 lbs. If the price had fallen, the plaintiffs could not claim that after one cargo had been delivered they would have been bound to accept from the defendants another, containing the difference between 5070 bushels and 9000 bushels. Yet they would have been so bound if the defendants are liable in this action. What was said by the parties after the delivery could have no effect upon their rights or liabilities, which were already fixed and determined. The contract was, in its nature, entire and inseparable, (Clark v. Baker, 5 Metc. 452,) and it was not in the contemplation of the parties to be severed or performed in parts. A delivery of a small cargo on an agreement for a large one, can in no sense be considered a part delivery, even if it were so intended by the parties. In this respect this case is entirely different from that of McKnight v. Dunlop, (1 Seld. 537.) In that case the malt was to be delivered in different quantities, at different times, and no payment was to be made until a certain amount had been delivered, which was not delivered.
    III. No breach of the contract as alleged, has been shown. The plaintiffs have averred, in their contract, a readiness and an offer to perform, on their part, before the close of navigation, and a refusal on the part of the defendants. This was a material averment, and one that the plaintiffs were bound to prove. There is no evidence whatever to show that the plaintiffs were, before the close of navigation, or at any time, ready to perform, or that they ever offered to perform the agreement on their part.
    The covenants to pay and to deliver are mutual and dependent, and the party bringing the action must plead and prove readiness and a tender on his part. (Lester v. Jewett, 1 Kern. 453. Smith v. Wright, 1 Abb. 243. Dunham v. Pettee, 4 Seld. 508. Kelley v. Upton, 5 Duer, 336. Considerant v. Brisbane, 14 How. 487. Williams v. Healey, 3 Denio, 363, Culver v. Burgher, 21 Barb. 324. Crandall v. Clark, 7 id. 169. Van Schaick v. Winne, 16 id. 89. Johnson v. Wygant, 11 Wend. 48. Parker v. Parmele, 20 John. 130. Porter v. Rose, 12 id. 212. Topping v. Root, 5 Cowen, 404. Green v. Reynolds, 2 John. 207. Morton v. Lamb, 7 Term R. 125. Pordage v. Cole, 1 Saund. 319.)
    In Lester v. Jewett, (1 Kern. 453,) the court held that the plaintiff was bound to show not only a readiness, but a tender. The Court of Appeals held the same in Smith v. Wright, (1 Abb. 243,) which was a case originating in the New Y°rk Superior Court. In Considerant v. Brisbane, (14 How. 487,) the court held that “ a transfer of the stock and payment of the money were dependent acts.” “ In a complaint upon such a contract, the plaintiff must allege that he has done the acts required of him by the contract, to entitle him to the money ; this is a matter of substance, and not of form ; the burden of proof is on him to allege, and show, if his allegations in that respect are denied, that he transferred, or offered to transfer, the stock. This is indispensable to make out a prima facie liability against the defendant.”
    In Dunham v. Pettee, (4 Seld. 508,) Ruggles, Ch. J. says : “ If the buyer in a case of this sort fails to pay, or offers to pay within the time specified for mutual performance, the seller is discharged from liability to answer in damages for not delivering the thing sold." “ Whichever party seeks to enforce the contract against the other, must show performance or tender of performance. Until that be shown, he is himself in default. The plaintiffs in this case are seeking to enforce the contract, and the judge should have told the jury, that to entitle them to recover, they were bound to show an offer of performance, whether the defendants were ready or not.” (Porter v. Rose, 12 John. 212. Topping v. Root, 5 Cow. 404.)
    IY. The plaintiffs, by their agent, Yan Yleet, knew at the time of the contract that the defendants were not acting for themselves. Only their principals, Smith and Gilbert, could be liable for any breach of the agreement.
    Y. The action is for a breach of a contract to deliver before the close. of navigation. That alleged breach was waived by the plaintiffs:, and they agreed to extend the time to deliver until the defendants heard from their principals, Smith and Gilbert.
   By the Court, Monell, J.

There is no conflict in the evidence as respects the nature of the oral contract for the sale of the barley. All the witnesses agree, that it was a sale of a cargo of barley of about nine thousand bushels.” One of the witnesses described it as a load” of barley of nine thousand bushels. There is nothing in the case to indicate what was meant or intended by the parties as a “ cargo” or load” of barley, but it is proper to presume that the ordinary or usual conveyance used for transporting cereals from the western states was intended. Hence evidence was given that some canal boats will hold four thousand and some ten thousand bushels, and the plaintiff says the defendants were to let them have a cargo, containing about nine thousand bushels.

By the terms of the contract, the barley was to be delivered before the close of navigation; but there was no evidence given, or offered, to show whether the barley had or had not arrived at the time the contract was made, unless the defendants saying to the plaintiffs, the barley is in,” can be interpreted into meaning the barley has arrived.” But it is not material.

The contract of sale was void by the statute of frauds, unless the delivery and acceptance of the 5070 bushels was sufficient to bring the contract within the exceptions in the statute. On the 18th of November, a cargo or boat load of barley arrived. Notice of the arrival was given to the plaintiffs ; they sent their measurer, and had the barley measured. The barley was delivered at the place designated in the contract, and a bill conformable to the measurer’s return was rendered to the plaintiffs, and by them paid.

If the contract was divisible, and capable of a separate physi-.. cal performance, then, according to the clear weight of authorities, a delivery and acceptance of part would be sufficient. (Seymour v. Davis, 2 Sand. 239. Deming v. Kemp, 4 id. 147. McKnight v. Dunlop, 5 N. Y. Rep. 537. Catlin v. Tobias, 26 N. Y. Rep. 217.) But when the contract is indivisible, and cannot, by its terms, or otherwise, be performed in separate parts, then the whole contract must be performed at one time, and there can be no such thing as a part performance.

The contract was for the sale and purchase of a “ cargo” or “ load”'of barley. It was not a contract for the sale and purchase of either nine thousand bushels, or of about nine thousand bushels of barley. The quantity was merely descriptive of the capacity of a canal boat, some being capable of carrying four and others ten thousand bushels. So far as the vendees had the right to insist upon a “ cargo” of the prescribed number of bushels, namely, about nine thousand bushels, the bulk or dimensions of a cargo was an important part of the contract. For the tender of a cargo of less bulk would not have been a complete performance, and the vendees would have been excused for rejecting it. Had the contract been for a “ cargo of barley,” without specifying any quantity, it would have been as effectual, provided the quantity constituting a cargo was capable of being ascertained by parol proof.

A cargo is the lading of a ship or other vessel, the bulk or dimensions of which is to be ascertained from the capacity of the ship or vessel; and where the name of the ship or vessel is in the contract, her capacity for carrying, or the bulk of her cargo, need not be stated, for the word “cargo” embraces all that the vessel is capable of carrying.

The contract before us, was an entire, indivisible contract. It could not be separated into parts, and was incapable of a part performance. Neither less nor more than a “ cargo of barley" could be tendered as performance by the vendors. Nor were the vendees bound to accept a “cargo” of less than, about 9000 bushels. A vessel with capacity to carry ten thousand bushels, freighted with only five thousand bushels, would not have been a “cargo” within the' meaning of the contract.

The delivery and acceptance of a part of the goods, to take the contract out of the statute, is where by the terms of the contract a part may be delivered. And such are all the cases in the books. In both of the cases arising in this court, (Seymour v. Davis, and Deming v. Kemp, ubi sup.) the contracts provided in terms for partial deliveries. In McKnight v. Dunlop, ubi sup. the contract was for 5000 bushels of barley. Payments were to be made whenever $1000 worth of barley was delivered. 1400 bushels only were delivered, when the vendor refused to deliver any more, and the action was by the vendees to recover the difference. The court held that the delivery and acceptance of the 1400 bushels took the contract out of the statute. The only question, however, discussed in that case, was whether a subsequent part performance was sufficient.

Whether the delivery and acceptance of a part, will render valid a previously void contract, depends upon whether, within the terms of the contract, the vendor can make a part delivery and the vendee can accept such part delivery, as a part performance only.

It seems to me there can he no part performance of an entire, inseverable contract, and the exception in the statute was intended to apply to contracts capable of severable performance. Thús the contract for the sale of 5000 bushels of barley, in McKnight v. Dunlop, was capable of a part delivery. In all contracts intended to be aided by the exception in the statute, the possibility of performing it in parts becomes the material question. If the goods sold and bought consist of several, part of which may be separated from the rest and delivered, and the contract does not require the whole to be delivered at one time, the part delivery brings the contract within the exception. But where there can be no separation, and the contract and the parties contemplate one delivery of the entire purchase, a part delivery will not do. A contract to sell a cargo,” or “ boat load,” does not admit of the delivery pf less-than a cargo or boat load, irrespective of any quantity which' constitutes its bulk.

It is well settled in this state, that a vendor of goods cannot recover, either the contract price, nor upon a quantum meruit, for a part of the goods delivered, even although accepted by the vendee. (Champlin v. Rowley, 13 Wendell, 258. S. C. 18 id. 187. Mead v. Degolyer, 16 id. 632. McKnight v. Dunlop, 4 Barb. 36. Oakley v. Morton, 11 N. Y. Rep. 25. Catlin v. Tobias, ubi sup.) The reason of the rule is, that full performance of such contracts by the vendor, is a condition precedent, and must.be averred and proved.

The contract, in the case before us, was for a cargo ” of barley. Doubtless it was contemplated by the plaintiffs, possibly by both parties, that the cargo would contain about nine thousand bushels. 'But the sale was not of that quantity^ although the plaintiffs were not bound to accept less ; and looking at the contract as it is, it is impossible, I think, to say that the delivery and acceptance of a cargo containing less of bulk than intended by the parties, as expressed in their contract, would take it out of the statute.

When the cargo of 5070 bushels of barley arrived and was tendered to the plaintiffs, they might have rejected it, as not being a performance of the contract. It was not a cargo “ of about 9000 bushels.” Upon refusing to receive it, no right of action would have arisen to the defendants; and upon a demand by the plaintiffs of a cargo “of about 9000 bushels,” the defendants, on a neglect or refusal to deliver, would have been liable for a breach of the contract. But by accepting and paying for a cargo of 5070 bushels, it seems to me, the plaintiffs waived the right to object or insist that it was not a full and complete compliance with and performance of the contract. By such acceptance, the plaintiffs put their construction upon the contract, namely, that a delivery of a cargo of less than 9000 bushels satisfied its terms. Their neglect to avail themselves of their right to reject a cargo of a less number of bushels is to be deemed an admission, by them, that the quantity was not the essential part of the contract, and after accepting they cannot claim that it was a part performance only.

Suppose, after the delivery and acceptance of the 5070 bushels the defendants had tendered another cargo of 4000 bushels, would the plaintiffs have been bound to receive it ? I think not. They could have said, you tendered and we accepted a “ cargo which, although it contained less in quantity than was intended, was nevertheless a cargo, and we received it as such, and as a fulfillment of the contract.

The delivery and acceptance of a part of the goods, to take a case out of the statute, must be a part of a known and defined quantity, which can be disjointed and separated from, the whole; not a part of an entire thing which it was intended should be delivered in bulk. A parol contract for the sale and purchase of a “ steamboat,” would not become valid by the delivery and acceptance of a part of the machinery; or of a “ wagon,” by the acceptance of the wheels only. Hone of the cases go so far. Indeed I have not found any case taken out of the statute, where the contract itself did not in express terms, of by necessary implication, admit of a partial delivery. In this case there was an acceptance of a cargo,” as bargained for; and although it did not reach the quantity intended, or answer the description in the contract, nevertheless it was accepted by the plaintiffs as such.

In Clark v. Baker, (5 Metc. 452,) the sale was of a cargo of corn, on board of a schooner lying at Boston, at 76-^ for the yellow corn and 73J for the white corn. The quantity of corn was not known, but proved to be between 2000 and 3000 bushels. The plaintiff received a part and refused the remainder. The court held that the contract was. entire. Hubbard, J. says : The bargain was not for 2000 or 3000 bushels of corn, but it was for the cargo of the schooner Shylock, be the quantity more or less.” He says it cannot be regarded as a separate bargain for each separate bushel. “ This separation into parts so minute, of a contract of this nature, can never be admitted. * ® As well might a man who sold a chest of tea by the pound, or a piece of cloth by the yard, or a piece of land by the foot or by the acre, contend that each pound, yard, foot or acre was the subject of a distinct contract, and each the subject of a distinct action.”

In Whitwell v. Wyer, (11 Mass. Rep. 6,) the contract was by parol for the sale of 25 hogsheads of rum. T'he vendors were to furnish the casks, but nothing was said about their size. The vendors selected hogsheads below the customary size; they were filled, and notice given to the purchasers that they were ready for delivery. At the same time a bill for the 25 hogsheads was presented. The purchasers remarked that the hogsheads were small, but did not object to receiving them. They paid $1000 on the bill, and accepted the 25 hogsheads. The court held that the delivery and acceptance of the 25 hogsheads, without objection, was a complete performance of the contract, notwithstanding the hogsheads delivered were not of the description named in or intended by the contract.

It is said that the acceptance was qualified ,' that the plaintiffs refused to receive the cargo as a full performance of the contract, But they did receive it, and they had no power to make a new contract without the consent of the other party. If the thing tendered for their acceptance did not answer the description in the contract, the only right of the plaintiffs was to reject it. (Corning v. Colt, 5 Wend. 253.) They could not qualify their acceptance so as to limit it to a part performance, when the very act of acceptance determined the completeness of Ü0 performance.

It is not, perhaps, too much to say that there has been an inclination in the courts to stretch the statute to cover contracts which it was intended to exclude. The statute was enacted for wise purposes, and we should stop some where short, I think, of legislating it quite out of existence, by making the exceptions the rule.

In the view I have taken of the question, it has not become necessary for us to examine, at any. length, another objection taken by the defendants. The plaintiffs averred a readiness and an offer to perform before the close of navigation. There was no proof of this, nor of a readiness to perform at any time. The covenants to pay and deliver were mutual and dependent covenants, and the plaintiffs should have proved not only a readiness to perform, but a tender of performance on their part. (Kelley v. Upton, 5 Duer, 336. Williams v. Healey, 3 Denio, 363. Lester v. Jewett, 11 N. Y. Rep. 453.)

Upon the whole, I am of opinion that the exceptions should be overruled, and judgment ordered dismissing the complaint.

Robertson, Ch. J.

The vagueness of the terms of the verbal contract in this case has produced all the difficulty. If it had been to sell a certain quantity of barley of a particular kind, before the close of internal navigation in this state, in the year 1862, at a certain price, there could have been no question raised. The complaint only alleges that it was an agreement to sell nine thousand bushels of barley, or thereabouts. The evidence, however, seems to show that it was of some undefined cargo, on its way to New York in a canal boat, and that the precise bulk was not fixed, but an approximation to it agreed upon. The agreement was made between the defendant Simons and the plaintiff Flanagan. The latter testified that no particular bulk was mentioned ; it was thought to be the average quantity that came by (canal) boats. * ® Some held four and some ten thousand bushels.” Simons was to let him have a cargo of nine thousand bushels.” It was so arranged because the former wished to specify the quantity. He also added that such amount was not the 'average run of the boats ; it was what the latter.thought it would be. Another witness (Van Vliet) testified that the quantity stated was a' cargo containing about nine thousand bushels, ® ■ * to be delivered before the close of navigation.” Simons told Flanagan he presumed such barley would be along in a very short time.” It was spoken of as a cargo of barley containing about nine thousand bushels. Other witnesses spoke of it as a (boat) load of barley.

Whatever else was indefinite in such contract, it was evidently an agreement to sell, not so much barley generally, but a cargo of so much then on its way in canal boats, If the defendants, without any fault on their part, never received such barley, they would not have been bound to procure it in the market. The whole contract was made in reference to the arrival of the barley and the facilities of navigation. The amount was determined by the average bulk of cargoes in canal boats. The particular boat or cargo was not named. The defendants had therefore a right to select the one they chose to tender ; and the plaintiffs had a right to refuse any which did not correspond with the description by not having the requisite quantity. But its being one cargo was to govern, unless both parties agreed to carry the agreement out by two. The defendants selected and delivered, as a performance of the contract, a cargo of much less quantity. The plaintiffs had a right to refuse it as a performance, because not corresponding in quantity ; but they received it, paid for it, and accepted a receipt for it as being such quantity, although they insisted it was not a performance. The defendants did not propose to divide the contract by such delivery, and leave a part unperformed. They proposed to perform it fully, and the plaintiffs by accepting the thing offered acceded to the proposal. They could not divide the contract alone, and claim the delivery of a second cargo or a part of one, as a part of the contract remaining unperformed. Their remedy was to object to and refuse the receipt of a smaller cargo than was bargained for, as a performance. A boat load or cargo described as containing a certain quantity, is as definite, indivisible and entire, as an animal of a certain weight, strength or speed, a steam engine of a certain power, or any indivisible article of merchandize of certain dimensions or weight. The delivery of an animal of less weight, strength or speed, a steam engine of less power, or article of merchandise of less dimensions, and its acceptance by the vendee, satisfies a contract to sell one greater in all such respects, when delivered in performance of it. Such a delivery and acceptance would not leave any thing definite to be performed under such contract, certainly not the delivery of a second article of the same kind, with a supplemental amount of qualifications to make up the deficiency.

There was no evidence in this case of any arrival of a cargo of nine thousand bushels of barley, consigned to the defendants, for the non-delivery of which the plaintiffs could recover, even if they had not precluded themselves therefrom by acceptance of the cargo delivered.

I think, therefore, without regard to the statute of frauds, the plaintiffs have no right of action, having accepted a cargo delivered in performance of a contract to deliver one, though of'less bulk. No mere dissatisfaction or notice of not accepting it as a performance could vary the effect of its delivery as such and acceptance, because there was nothing left under the contract in a definite shape to be performed.

I concur in thinking judgment should be given for the defendants, and the exceptions overruled.  