The alleged contract, when first orally made, was within the statute of frauds and void. The question here is, whether there was such acceptance by the plaintiffs of part of the goods embraced in the agreement as to give to it validity as one for the sale and delivery of the property in question. The absence of any written note or memorandum of the contract subscribed by the parties to be charged rendered it void, unless the buyers accepted and received part of the goods, etc. (2 R. S., 136, § 3.) The receipt and acceptance required in such case, by the statute, embraces delivery by the seller pursuant to the agreement, and in partial performance of it, of part of the goods so accepted and received.
One important question is whether the evidence supports the conclusion that the agreement to sell the sample pieces and the five cases of goods was one entire contract, or whether the engagement to furnish the pieces was a preliminary one and distinguished from the agreement to sell and deliver the cases. There is evidence tending to prove that the plaintiffs’ order for the five cases at
Tbe defendants’ counsel contends that tbe contract was not an •entirety, and that tbe delivery of tbe sample pieces was a complete performance of one of two agreements, and that tbe one to sell and deliver tbe cases was another, and was not rendered effectual by such delivery and acceptance, and that they were characterized as distinct agreements by tbe fact that tbe articles were not deliverable nor .the prices payable at tbe same, but at different times in tbe future. And in support of such contention cites Seymour v. Davis (2 Sandf., 239), and Aldrich v. Pyatt (64 Barb., 391). Tbe fact that tbe sample pieces were to be delivered first, and tbe cases at time or times subsequently, does not of itself necessarily deny to tbe acceptance of tbe former tbe effect of making tbe agreement to deliver tbe latter valid. The views of the court given in Seymour v. Davis (supra), and in Deming v. Kemp (4 Sandf., 147), apparently sustain tbe position that a contract within tbe statute of frauds to sell and deliver goods, and to pay for them at future and different times, is not validated as a whole by tbe delivery and acceptance of one or more of tbe several parcels of it pursuant to the contract,' but that they must be treated as several engagements for sale and delivery; and that each delivery and acceptance provided for by tbe contract is in recognition of a distinct contract and its complete performance and that it has no effect by way of relation upon tbe then fnture unperformed stipulations. And the former one of those cases seems to assert tbe proposition, that an acceptance of a part of tbe property subsequently to tbe making of tüe oral agreement does not have the effect to take it out of tbe statute of frauds. So far as these two cases may be treated as so bolding they are not in harmony with tbe approved current of authority giving construction to tbe statute, and to tbe effect of partial delivery and acceptance, although tbe. time of delivery and of payment is in the future and at different periods. (McKnight v. Dunlop, 5 N. Y.,
In Aldrich v. Pyatt, where tbe oral contract was to sell a quantity of apples and barley, the former to be delivered at once and the barley later, it was held that it embraced two distinct agreements, and that the delivery and acceptance of the apples did not validate that to sell the barley. If the court was right in the fact that there-were two distinct contracts the conclusion was right. The justice who there delivered the opinion cited in support of his position Tipton v. Feitner (20 N. Y., 423), which presented an entirely different question and had relation only to the familiar rule that where several parts of a contract may be taken distributively in respect to time of payment as performance proceeds, and where-entire performance is not made a condition precedent, the right to-demand and recover payment to the extent of performance may exist although there has been failure or refusal to complete it. And the remedy for such default or breach is by way of recoupement or action only. (Sickels v. Pattison, 14 Wend., 257; Snook v. Fries, 19 Barb., 313.)
The fact, therefore, that the property was deliverable and the purchase-money payable at different times in the future did not necessarily deprive the contract in question of the character of entirety, or make it other than a single one in respect to all the goods embraced in its terms. The jury have found that the agreement was made as claimed by the plaintiffs, and that it was a single contract for the sale and delivery of the five cases and the sample pieces of the goods; and we think they were justified in so doing upon the evidence. The question arises whether the conclusion that the delivery and acceptance were such as to validate the agreement to sell the five cases is supported. The pieces were evidently delivered with the intent to vest title to them in the plaintiffs ; and the latter accepted them as owner, and the inference was legitimate-that the delivery and acceptance were pursuant to the agreement referred to. But it is insisted that they could not have had that •effect, because: 1. The substantive agreement was to sell the five-cases, and the sample pieces were furnished to enable the plaintiffs to select styles of the goods ordered,- which depended upon such selection, and that in legal effect the delivery of them was on
The defendants’ counsel also insists that the complaint is not supported by the evidence, and therefore the plaintiffs were not entitled to recover. This contention is made for the reason that the complaint alleges only an agreement for the sale of the five cases; that for the purpose of the pleading it is presumed to have been a valid contract and therefore in writing! that the proof fails to show any valid agreement for the sale of five cases, but that the plaintiffs on the trial to justify oral evidence
The rule of damages properly applicable on the evidence was the difference between the contract price and the market value as of the time stipulated for delivery. And there was no error in the refusal to charge otherwise. (Davis v. Shields, 24 Wend., 322; Dana v. Fiedler, 12 N. Y., 40; Messmore v. N. Y. S. and L. Co., 40 id., 422.) The cases where the time of refusal to perform, or within a reasonable time thereafter, is adopted as that at which the market value or cost is to be taken as the basis of estimate of damage, are distinguishable in facts from those of the case at bar’.
Whether the time designated by the plaintiffs for the delivery of the goods was reasonable or not within the meaning of the contract and contemplation of the parties was not a question in the case. The defendants did not make any objection in that respect but put their refusal to deliver on other grounds.
The several exceptions have been carefully examined and none of them seem to have been well taken. And while the questions of fact were in some respects close ones on the evidence, it was suf*
The judgment and order should be affirmed.
Judgment and order affirmed.