Gault v. Brown.

accepted nor paid for by defendant. This action was brought to recover price. On the plaintiffs stating these facts in opening, the defendant objected that the agreement was within the statute of frauds. The case was taken from the jury and reserved for full

court.

Marshall & Chase, for plaintiffs.

Foster & Sanborn, for defendant.

BELLOWS, J. The defense set up is that the contract was within the statute of frauds, and therefore invalid, both because it was for the sale of goods of the value of $33.00 and upward, and was not to be performed in one year.

In answer to the plaintiffs' position that here was an acceptance of part of the goods sold, the defendant replies that the case shows several and distinct contracts for the sale of the lots delivered the nrst and second winters; and that no part of the second winter's lot was accepted.

The contract, however, was for the sale of the entire lot of wood upon a certain lot of land, estimated to be rising seven hundred cords, to be delivered that winter by the plaintiffs, at another place, so far as they could, and the balance the next winter and year; and this, we think, must be regarded as one entire contract. It was made all at one time, and embraced the entire quantity of wood, and the plaintiffs were bound to deliver it all that winter if they could, but if they could not, then to deliver it the next winter and year; the quantity delivered each winter to be paid for at the close of the winter's delivery, on demand.

There is nothing here, we think, to show separate and distinct contracts originally for the sale of different portions of this wood It is nothing more, certainly, than a contract for the sale of goods, ten thousand bushels of wheat, for example, with a stipulation that it shall be delivered and paid for at different times; and in such a case there could be no pretense for claiming that the contract was not entire. In the case before us, it was not stipulated absolutely that any part of the wood should be delivered the second winter and year, but it was upon the condition, depending, perhaps, upon the sledding, that plaintiffs were unable to deliver it all that first winter.

In the case of sundry articles purchased at the same time, though

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for a separate price for each article, it is held nat the sale is to be regarded as one entire contract for all, and not a several contract for each article. Browne on Frauds, § 335, and cases; Baldy et al. v. Parker, 2 B. & C. 37; Elliott v. Thomas, 3 M. & W. 170. So is Gilman et al. v. Hill, 36 N. H. 311. The same doctrine was applied where the parties made bargains for the purchase and sale of several lots of timber at different places some miles apart, the bargains being made at the different places and at separate prices, but all on the same day. Browne on Frauds, § 335, citing Biggs v. Whisking, 25 Eng. Law & Eq. 257.

In Scott v. Eastern Counties Railway Co., 12 M. & W. 33, where goods were ordered at one time, some of which were manufactured, and others not, it was held that the contract was entire for all the goods, and that the delivery and acceptance of the manufactured articles took the case out of the statute as to all.

In the cases cited of purchases of various articles of goods at one time, but at separate prices, some stress was placed upon the fact that they were all included in one bill, tending to show that there was but one contract, which is the turning point in the inquiry.

In the case before us, we think the original contract was an entire one for the sale of the whole seven hundred cords of wood, with stipulations as to the time of delivery and payment, which in one event would defer the delivery and payment of part of the wood to the next winter.

In the last count and also in the opening of the cause, it is alleged that after plaintiffs had delivered nearly all of the three hundred and seventy-four and three-quarter cords, the defendant requested them not to deliver any more that winter; but to deliver the balance the next winter, and promised to accept the same then, according to his aforesaid contract; and thereupon the plaintiffs relaxed their efforts, and finally desisted after delivering said three hundred and seventy-four and three-quarter cords.

It was undoubtedly competent for the parties to have made at this time a new and independent contract in respect to the remainder of the wood, entirely superseding the old one. Whether they have done so or not must depend upon the evidence that may hereafter be offered. Upon the declaration and the opening of the cause we think it cannot be held that a new contract was then made superseding the old one, but rather an agreement modifying the original one as to the time of delivery of the remainder of the wood.

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The promise alleged was to accept the balance the next winter according to their aforesaid agreement, which would seem to recognize the continuance of the original contract. The case of Cuff et al. v. Penn, 1 M. & S. 21, was much like this in this respect. It was a written contract to deliver a quantity of bacon at different times, and after the delivery of several parcels, the parties, by parol agreed upon other times for the delivery of the rest. This was held good, and that the original contract still remained in force. See 1 Phillips' Ev. 561.

It may be remarked, however, that if the original contract had been taken out of the statute of frands by a partial delivery and acceptance, or payment, and so had become valid and binding, it could hardly be superseded by an agreement which was invalid under that statute.

As the case now stands, we are of the opinion that the original contract of sale was an entire one for the whole quantity of wood, and that we cannot hold that it has been superseded by a new agreement as to a part. We are aware that in Seymour v. Davis, 2 Sandf. Sup. Ct. 239, a different doctrine was held. The contract there was for the delivery to the defendant of from five hundred to eight hundred barrels of cider during the fail and winter following, at such times and in such quantities as the plaintiffs could make it convenient to send; for which defendant was to pay $4.00 per barrel by his indorsed note at sixty days. Several parcels were delivered and such notes given for all but the last parcel of one hundred barrels for which the suit was brought, the whole amount delivered being about two hundred and eighty barrels. The court decided, in an action to recover the price of the one hundred barrels, that the delivery and acceptance of the several shipments of cider under this ageement made so many distinct contracts of sale, upon each of which the parties had distinct remedies; and the delivery and acceptance of one or more parcels did not take the whole original agreement out of the statute; and in fact, also held, that a subsequent receipt and acceptance of part of the goods would not take out of the statute a contract for the sale and delivery of goods at a future period; that the original agreement being void could never be made valid, though subsequent acts might establish a new contract of sale embodying more or less of the original arrangement.

In respect to the doctrine that a subsequent receipt and acceptarce will not take the contract of sale out of the statute, this case

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is distinctly overruled in McKnight v. Dunlop, 1 Seld. 537, in the court of appeals; and the case of Boutwell v. O'Keefe et al., 32 Barb. S. C. 434, is in direct conflict with Seymour v. Davis. In Boutwell v. O'Keefe, there was a contract to furnish the defendants with all the meal they wanted at stipulated prices, to be paid for monthly, half in cash and half in stocks, and a delivery of meal at various times. The court say that it can no longer, since the case of McKnight v. Dunlop, be contended that the agreement could not be made valid by subsequent part performance, or that subsequent delivery of articles from time to time in execution of the contract are to be regarded as separate and distinct transactions, or as so many separate and independent contracts.

The case of Seymour v. Davis goes upon the ground that a sale of goods which is invalid by the statute of frauds cannot be made valid by a subsequent delivery and acceptance of part; and therefore that when part are so delivered and accepted a new contract arises in respect to them; but it being settled that a subsequent delivery will be available, the foundation for the doctrine that a new contract is made by accepting part of the goods is taken away.

The cases cited by the court in Seymour v. Davis for the doctrine announced do not, we think, sustain it. In one of those cases (Mavor v. Pyne, 3 Bing. 285), the defendant agreed to take twentyfour numbers of a periodical work to be delivered monthly, at a guinea a number, and he took eight of them and omitted to take the rest, though ready for him. In a suit to recover the price of those received by him the plaintiff was allowed to recover, upon the ground that defendant had put an end to the contract.

In Bowker v. Hoyt et al., 18 Pick. 555, another case cited, plaintiff bargained a quantity of corn to defendants and delivered a part of it, but refused to deliver the whole. In a suit for what he did deliver, it was held, that, as defendant retained the corn delivered, he was bound to pay for it, deducting the damages caused by plaintiff's failure to deliver the rest. A similar doctrine is held in Oxendale v. Wetherell, 9 B. & C. 386.

If part of an entire quantity bargained for is delivered and absolutely accepted, the buyer will be holden to pay for what he has so received, although the seller refuses to deliver the rest. In such case the buyer may refuse to accept part without the whole, but if he choose to retain it after the seller has declined to deliver the rest, he must pay for it, although he would be allowed to deduct the

Gault v. Brown.

damages for the failure to deliver the whole. Champion v. Short, 1 Camp. 53; Baker v. Sutton, id. 55, in note.

Our conclusion s, then, that if the contract be originally entire, and it provides for the delivery of the goods at different times, and some are delivered and accepted under and in pursuance of that contract, it is no severance of it. If the vendee receive a part and then refuse to receive the rest, the vendor may maintain an action to recover the price of what is received.

The next question, then, is whether this agreement has been taken out of the statute by the delivery and acceptance of a part of the wood. The case stated is that the three hundred and seventy-four and three-fourths cords were delivered and accepted by the defendants and paid for by them according to their promise, and the only question is whether an acceptance of a part of the property sold at a time subsequent to the making of the contract is sufficient to take the case out of the statute.

By that statute no contract for the sale of goods, wares or merchandise for the price of #33 or upwards, shall be valid "unless the buyer shall accept part of the property so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment," or there be some note or memorandum, etc.

As will be perceived, the acceptance of part of the property at a period subsequent to the making of the contract is within the terms of the statute; and the question arises whether there is in the nature and object of this provision any thing to limit the acceptance to the time the contract is made. The object of the statute is to prevent the setting up of pretended contracts of sale to be provided by oral testimony alone, which, in the experience of mankind, often leads to perjury; but the danger is supposed to be much diminished by the actual delivery and acceptance of a part of the property sold, or the payment of part of the price. These acts have ordinarily something substantial about them to attract attention, and therefore cannot be so easily proved by false testimony as a mere oral agreement may be.

The value of these provisions as a safeguard against perjury is not at all diminished, as we can perceive, by a construction which shall give the same effect to an acceptance or part payment subsequent to the making of the contract.

A subsequent delivery and acceptance, provided it is shown to be nder, and in pursuance of, the previous agreement (as it must be,