
    Edward K. Warren, Respondent, v. Christopher Winne, Appellant.
    (General Term, Seventh District,
    March, 1870.)
    An agreement to sell certain growing hops at so muck per pound, and that they should be of first quality, held to intend harvesting and preparing the same for delivery as hops are usually prepared for marketing by weight.
    Appeal from a judgment for the plaintiff, entered upon the report of a referee, for the value of hops raised upon the defendant’s farm, and for which the plaintiff claimed under an agreement to sell to his assignor. The facts are sufficiently stated in the opinion of the court. The case was submitted upon briefs, without oral argument.
    
      Benedict c& Martindale, for the appellant.
    
      George W. Miller, for the respondent.
    Present — Johnson, J. C. Smith and Dwight, JJ.
   By the Court

Johnson, P. J.

The point made upon the trial, on behalf of the defendant, that the contract if made, as alleged, between the parties, was void by the statute of frauds, for the reason that it related to an interest in real property, is not now made, and is presumed to he abandoned.

It,is-now urged by the defendant’s counsel as it was before the referee, that the agreement if made in- the terms'-shown by the evidence,, was veil for uncertainty. The agreement ayas- verbal-,, and- was made, as- the referee finds, on the 25th of May, 1864, and related to the hops- then- growing.owthe defendant’s farm. It was in substance as follows: The plaintiff’s assignor asked the defendant if he would take fifteen cents per pound for his hops of the present season, to which the defendant answered he would. The plaintiff’s assignees then said the hops must he of the first quality, and the defendant replied, yes. The former then took from his pocket book five dollars, and gave-it to the defendant-,,saying that he gave it to hind the bargain. The defendant took the money, and has since kept it, without any offer to return it. I do not perceive any uncertainty about this Bargain. It contains, all the elements necessary to a valid- agreement. Here-are. the mutual-assent of two persons, competent to-contract ;. a good' and valid consideration; and a thing'to be done by each of the parties. The subject of the contract, the thing to-be-done-in reference to it, by each-party, and-the price,.-and all either distinctly expressed, or clearly implied in the terms used¡. It-is claimed, that it does-not-appear from-the terms* or scope of the-contract, what the defendant was to do to he entitled to the price. But this is- all- implied in- the agree-anent to sell at fifteen cents per pound, and that the hops--should be of first quality. It was clearly 5, part of this undertaking, on the part of the defendant, to prepare his-crop and put it in the same condition for delivery that such a crop is usually put in, when marketed by weight,, as much, so as though it had been expressed with the utmost detail and precision. Tiie law will interpret- it an agreement, to do whatever is usually done in the regular course of trade and dealing in,that article,-as-there is nothing in the terms to take it* out of- the ordinary course. The- presumption- in such- a case must- be, that the parties mutually intended- performance-in the. usual and'customary manner-.- If the-arrangement was sufficient, in.point-of terms and form, to amount-to an: agreemcnt, there can be no doubt that the'payment and acceptance" of the five dollars, rendered it valid' and binding- as to' both parties:

The' findings of fact, by tlió refereé,- are fully warranted by the evidence; He finds that the plaintiff showed the defendant his assignment, and demanded the delivery of the hops' either at the premises of the defendant, or at some other point on' the railtoad ais might" be most convenient'; and that the defendant refused to deliver the hops, or any part of them. There'is no evidence that Yan Valkenburg, before he assigned’ the contract/ abandoned or rescinded' it, or assented to its non-performance by the defendant.

The judgment must'therefore be affirmed!'

J udgment affirmed.  