
    Aldrich vs. Pyatt.
    The defendant, by his agent, made a parol contract with the plaintiff, to purchase of him a quantity of apples and his crop of barley; the apples to be delivered immediately, and the barley as soon as a car could be procured for shipping it; and to be paid for, respectively, on delivery. Nothing was advanced upon the contract, at the time, in part payment, either for the apples or the barley; and the articles were not then delivered, or either of them, or any part thereof. The apples were subsequently delivered, accepted and paid for. Held, that the contract in respect to the apples, and that in respect to the barley, were in effect separate in regard to their execution.
    
      Held, also, that the articles sold, being of different characters, to be delivered at different times, and paid for, respectively, on delivery, the contract was to be executed distributively; and the delivery and receipt of the apples, and payment therefor, did not take the case out of the statute of frauds, so far as related to the barley.
    APPEAL by the defendant from a judgment of the county court of Ontario county, and from an order denying a motion for a new trial.
    The action originated in a justice’s court, where the plaintiff, in his complaint, alleged that on or about the 31st day of October, 1869, at Farmington, Ontario county, the plaintiff, and the defendant, by his agent, made an agreement, by which the plaintiff sold to the defendant, and the defendant purchased of the plaintiff, a quantity of apples and his crop of two-rowed barley, supposed to be about two hundred bushels, at the price of $1 a bushel. That by the terms of said contract of sale, the said apples and barley were to be delivered by the plaintiff, to the defendant, at Shortsville, which said apples and barley were to be paid for by the defendant on the delivery thereof, as aforesaid; that the apples were to be delivered immediately, and the said barley as soon as the defendant could get a car to ship said barley; that afterward the plaintiff delivered the said apples to the defendant, at Shortsville, and tendered the barley to the defendant, and was ready and willing to deliver the same, as by the terms of said contract he was required to do; that the plaintiff then and there requested the defendant to accept the said barley and pay for the same as he had agreed, but the defendant refused to accept or receive the same or pay for it, and that he has always refused and still refuses to do so; that by such refusal the plaintiff had been put to great loss, by reason of the decline in the price of barley, since the making of said contract, as aforesaid ; and the plaintiff claimed damages in the sum of $100.
    The answer of the defendant was a general denial.
    The plaintiff introduced evidence upon the claim made by him. The defendant offered no evidence, but made a motion for a nonsuit on the ground that the proof did not show any cause of action, and that the contract sought to be established was void by the statute of frauds. The motion was denied by the court, and judgment rendered in favor of the plaintiff, and- against the defendant, for $64.95 damages and $4 costs.
    On appeal to the county court, a new trial was had, in that court, upon which it appeared that, at the time of the transaction in question, the plaintiff was a farmer, residing in Farmington, Ontario county, and on the 21st of October, 1869, owned and had in his possession, at Ms residence aforesaid, Ms crop of apples for that season, which was then picked, and also 288 bushels of barley, then tM’eshed and in his barn, and a portion of it then cleaned for market. The defendant was a merchant residing and doing business at Newark, in the county of Wayne. One Holmes, at tMs time residing on the farm adjoining the plaintiff, was, prior to October 21, 1869, authorized by the defendant to purchase for him apples and potatoes, and receive the delivery of them at Shortsville in said county, and on the said 21st day of October the defendant also authorized Holmes to buy for him some barley, with authority to pay therefor $1 per bushel; this authority to buy barley was revoked on the following day. But while tMs authority continued, and on the 21st day of October, Holmes called at the defendant’s residence, and then had a verbal negotiation with him on the subject of the purchase of his apples and also his barley, which negotiations are detailed by the plaintiff as a witness, in these words: “Mr. Holmes came along past my house in the after part of the day, and I think he called me to the road, where he was in a wagon, and spoke to me with regard to my apples and barley, and asked if I had sold them; I told him no ; I told him I had talked of selling my barley to a man by the name of Bippey, but had not sold it to Mm; he said he was buying barley and apples for the defendant; I tMnk he said that; he said he was buying barley and apples, however, and he would give me a dollar a bushel for my barley and twenty shillings a barrel for my apples, delivered at Shortsville. My apples were then picked, and my barley in the barn. A portion of it was then cleaned up, I think, and I told him he could have the barley and apples at that price. He was to furnish the barrels at Shortsville, and I was to get them there; he said I would find the barrels at Shortville and I could get the barrels and draw the apples immediately, and they would take the barley as soon as they could get a car.” “I think, at first conversation, Holmes told me he would pay me for the stuff: on delivery.” Within a few days after this talk the plaintiff drew ten barrels of apples to Shortsville, and they were inspected by one Eippey, who was an agent of Holmes, and paid for by Eippey at twenty shillings per barrel. Two or three weeks after the delivery of the apples, Holmes and the plaintiff had another conversation, in which Holmes refused to take the barley, on the ground, as he stated, that the defendant would not take it. The plaintiff then sold the barley for seventy-seven cents per bushel; and the verdict was for the difference in price between what it actually brought on the sale, and the price which it was claimed the defendant, through Holmes, agreed to pay for it. At the close of the plaintiff’s proof, a motion was made for a nonsuit, on the ground that the contract which the evidence tended to establish, was. void by the statute of frauds. The court held otherwise, and denied the motion, and at the close of the whole evidence the same motion was renewed and denied. The defendant then asked the court to submit the question to the jury, as to what in fact the negotiations between the plaintiff and Holmes were on the subject of the barley and apples, under the instruction of the court as to what the statute of frauds required, to constitute a valid contract of sale. This request was denied and an exception taken. The court directed a verdict for the plaintiff for $68.52, and the jury found accordingly.
    
      L. M. Norton, for the appellant.
    
      Hicks & Torrey, for the respondent.
   By the Court, B. Darwin Smith, J.

There is no particular dispute about the facts in this case. The witness Holmes was confessedly the agent of the defendant for the purchase of barley and appj.es at the time when he made the contract for the purchase of those articles of the plaintiff, as stated in the pleadings and in the testimony of the plaintiff. The contract for the purchase of the barley and the apples was made at the same time and in the same conversation, and would have been unquestionably a valid contract for the sale, both of the barley and the apples, independently of the statute of frauds. It was by parol, and nothing was advanced upon it, at the time, in part payment, either for the apples or the barley, and the said articles were not delivered, or either of them, or any part thereof, but were to be paid for, respectively, on delivery. The apples were subsequently delivered, accepted and paid for on the contract; and the only question in controversy is, whether such delivery took the case out of the statute in respect to the barley. The court below held, in effect, that the contract was an entire one, and that delivery of the apples took the case out of the statute. In this view I think the court erred, and the exceptions to the refusal of the court to nonsuit the plaintiff at the close of the plaintiff’s case, and also at the close of the evidence, were each well taken. The articles sold were of different characters; they were to be delivered at different times, and paid for respectively on delivery. The contract was to be executed distributively, as was said by Judge Denio in respect to the hogs sold, in the case of Tipton v. Feitner, (20 N. Y. 425.) The case seems to me precisely within the rule or exception stated by Chancellor Walworth in Mills v. Hunt, (20 Wend. 434.) In that case five parcels were purchased at the same sale, at auction; four were delivered, and the fifth not being delivered, the action was brought for such parcel. The court held that the delivery of the four parcels rendered the contract valid, and took it out of the statute for all, because all these parcels were to be delivered at the same time and paid for in one note, at six months. But the chancellor said the case would be different “when the purchaser, either at a public or private sale, paid for and took delivery of some of the separate articles only, leaving the residue undelivered and wholly unpaid for; or where several articles were purchased at the same time, to be paid for on delivery, and the purchaser afterwards received and paid for some of the separate articles only.” The latter exception to the rule is precisely this case; and the case of Keeler v. Vandevere (5 Lans. 313) affirms this rule. The receipt of the apples did not take the case out of the statute, so far as relates to the barley, no more than if the contracts had been made at separate times. The contract in respect to the apples, and that in respect to the barley, were in effect separate in respect to their execution.

[Fourth Department, General Term, at Rochester,

September 10, 1872.

Mullin, Talcott and E. Darwin Smith, Justices.]

The court below erred in directing a verdict for the plaintiff, and the judgment and order should be reversed and a new trial granted, with costs to abide the event.  