#### George F. Vietor *et al.,*Resp’ts, *v.*Louis S. Stroock, as Surviving Partner, etc., App’lt.

*(City Court of New York,*

*General Term,*

*Filed February 14, 1889).*

Statute op feauds—What sufficient sale of goods to satisfy.

The action was brought for goods sold and delivered. The evidence tended to show that defendant’s partner, one Stroock (now deceased) called at plaintiff’s place of business, and partially examined certain goods. He subsequently called again, with his bookkeeper, and made another examination. He expressed himself satisfied with them, and a price was agreed upon. Stroock and his bookkeeper said that they would take the goods, which were sent to defendant’s place of business, and there remained unopened for some time. When defendants opened the case, finding, as they allege, that they were not the same as they had purchased, they offered to return them. A motion was made to dismiss, on (he ground that the sale was within the statute of frauds, and void, *líela,*that the receipt and acceptance of the goods were complete, so as to satisfy the statute, and the contract of purchase and sale consummated; that as no fraud was alleged or proven, the defendants had no right to return, dr offer to return, the goods after their reception by them.

Appeal from judgment entered upon the verdict of a jury in favor of plaintiffs, and from an order denying defendant’s motion for a new trial.

The action is brought for goods sold and delivered. The answer is a general denial. Plaintiffs’ witnesses testified substantially that in March, 1880, upon invitation, the defendant, Samuel Stroock (now deceased), called at plaintiffs’ place of business in New York city, and partially examined certain goods, called chinchillas, contained in ten cases. He subsequently called again in company with a Mr. Strauss, his bookkeeper, and he was requested to examine all or as many of the goods as he desired, all the cases having been opened. After this examination, Mr. Stroock expressed himself satisfied, and stated that he had examined all he wanted to. Thereupon the price, seventy cents pér yard, was agreed upon. He was expressly informed that the goods would be sold “as are,” that is, not of first quality or grade, but in bulk, such as they were exhibited to him. The defendant and Mr. Strauss then said they would take the goods, which were then sent to the defendant’s place of business. The goods remained at the latter place, unopened, some ten days, at least, so the defendant testifies, there being no testimony on the part of plaintiffs on that subject. When the defendants opened the cases, as they allege, they say they found that the goods were not the same which they had purchased, and therefore offered to return them, declining to accept. Plaintiffs’ salesman endeavored to compromise the matter by offering a reduction of from five to seven and one-half per cent, upon the total amount, but it was not accepted,, defendants persisting in their rejection of the goods. *128Upon these facts, a motion to dismiss was made, on the ground that the- sale was within the statute of frauds, and consequently void, which motion was denied under •exception. The case was given to the jury upon the question of acceptance, and a verdict was rendered in favor of the plaintiffs. Defendant’s motion for a new trial was denied. Hence this appeal.

*Jacobs Brothers,*for app’lt; *Blumenstiel & Hirsch,*for resp’ts.

Nehrbas, J.

In considering the reasons for the enactment of the statute of frauds, it seems to us that one of the main objects to be accomplished was to do away with the making of contracts by mere word of mouth. Language, however strong, could not form the basis of a legal •agreement. Some act was required to be done by a purchaser before he could be bound. So that an acceptance and a reception of goods by him would be valid, not by reason of any verbal statements he might make, but by some action taken by him or on his behalf. This principle was laid down in *Schindler*v. *Houston*(1 N. Y., 261), and is. in our judgment, a correct exposition of the law in view of the purpose of the statute.

The case of *Cross*v. *O’Donnell*(44 N. Y., 661), however, seems to us to be a departure from this rule. In that case the defendants gave a verbal order to plaintiff to deliver 24,000 barrel hoops to a common carrier selected by the defendants. The latter had previously examined the hoops and had expressed their satisfaction concerning them, by word of mouth. It was held that acceptance might precede delivery, and that the defendants’ verbal admission that the goods were satisfactory was a sufficient acceptance, if followed up by actual delivery to the carrier. The goods having been lost in transit, the verdict of the jury in plaintiffs’ favor was sustained. The Court, Earl, J., says: ‘‘There is nothing in the statute which requires that the acceptance and receiving shall be at the same time. Either may precede the other, and after both have concurred, the statute' has been complied with and the contract becomes operative and valid. *McKnight*v. *Dunlop,*5 N. Y., 537.

The defendants agreed to take these identical hoops, and, after receiving them and thus fully complying with the statute, they could not reject them upon any objection to their quality.” See, also, *Allard*v. *Greasert,*61 N. Y., 1.

So, in the case of *Grey*v. *Cary*(9 Daly, 363). An oral agreement for the purchase of a scale was made by the defendants for sixty dollars, to be paid on delivery. It was *129taken for the purpose of delivery to the office of defendants upon a truck driven by plaintiff’s carman. He entered the defendant’s office, and handing the plaintiff’s bill, said, he had the scale on his truck. He was told to drive it into the back yard, and, in attempting to do so, accidently caused the scale to be broken. Held, that there had been no receipt of the scale by the purchasers sufficient to take the case out of the statute of frauds.

Yah Hoeseh, J.,

delivering the opinion of the court, says: *“*The scale was seen and selected by the defendants before the purchase, so that there is no doubt of the acceptance. The difficulty is, that there was no receipt of the scale by the defendants.”

Applying this interpretation of the statute to the case at bar, it seems to us that by the examination made of the goods by Mr. Stroock and his book-keeper, and his agreement to pay seventy cents per yard for the same, his acceptance of the goods was established. We must take the plaintiffs’ version of the verbál agreement, since the jury have found in their favor. The goods came into defendant’s possession, as the delivery is admitted by the defendant’s witnesses. Under *Cross*v. *O’Donnell (supra),*the defendants could not reject them upon any objection to their quality. Receipt and acceptance were complete, so as to satisfy the statute, and the contract of purchase and sale consummated. No fraud has been alleged or proven, and it seems, the defendants had no right to return or offer to return the goods after their reception by them.

For these reasons we feel bound to affirm the judgment and order appealed from, with costs.

McGowan, J., concurs.