By the Court,
Sutherland, J.
We are of opinion that a new trial ought to be granted in this case. The order of the defendants not having been strictly complied with by the plaintiffs, either as to the quantity of goods sent or the mode of transportation, it was incumbent upon them to shew an *256acceptance of the goods by the defendants, before they could be held responsible. The order was for a specified quantity and description of castings. If the castings had been sent according to the order the contract would have been closed. There would have been a complete agreement; an aggregate mentium, as it is expressed in Bruce and Bruce v. Pear-sons, 3 Johns. R. 534, and the defendants would have been bound. But the order not having been complied with, there was no express contract between the parties, and no promise to pay for the goods can be implied, without evidence of an acceptance of them by the defendants. If it had clearly appeared that the goods came to the hands of the defendants, that would have been evidence of an acceptance, and would have bound them, unless they had shewn that they declined receiving them, and gave notice of such refusal to the plaintiffs.
This doctrine is fully established by the case of Bruce and Bruce v. Pearson, already referred to. Pearson, in that case, had ordered a bill of goods to be sent to him at Albany from New-York; a part only of the goods were sent, and at a credit different from that specified in the order. Some of the goods were lost, the vessel having been cast away on her voyage up the river. Pearson refused to receive the residue of the goods, and gave immediate notice to the plaintiffs that he did not consider them as his, as they had not sent all the goods ordered, nor on the terms proposed. The court held that he was not liable for the value of the goods; that he was not bound to accept a part instead of the whole; and until he assented to receive a part, he could not be said to have contracted to pay for a part, and that there could be no implied assumpsit to pay, as the goods sent never came to his hands.
The real question in this case then was, whether the castings sent had been accepted by the defendants 1 The judge decided, and so finally instructed the jury, that the defendants were liable, unless they proved that they gave notice to the plaintifis that they declined accepting the goods on the ground of deficiency in the quantity. This would have been correct, if it had been shewn that the goods had actually come *257to the possession of the defendants; but there was no such evidence; on the contrary it appeared that they were still at Rochester and never had been in the defendants’ possession.. We do not mean to say, that the actual receipt of the goods is the only evidence which could be given of their acceptance ; if it had clearly appeared that a bill of the goods had been sent to and received by them, shewing the particular quantity and description sent, this would have been notice to the defendants that their order had not been complied with according to its terms, and would have made it incumbent upon them to give notice to the plaintiffs of their refusal to accept or they would have been liable. What we intend to decide is, that the plaintiffs were bound in the first instance to shew an acceptance of the goods by the defendants by competent and satisfactory evidence, and that whether there was an acceptance or not was a question of fact which should have been left to the jury. If the evidence as it now stands had been fairly submitted to the jury under proper instruction from the court, and they had found for the plaintiffs, we should not have disturbed the verdict: but the question of fact was substantially withheld from them, in a case certainly not free from doubt. A new trial must therefore be granted.