#### LEVI HURLBURT *vs.*JAMES SIMPSON.

December 1842.

A party may recover damages'for a non-compliance with, a parol contract for the purchase of an article of personal property, though no *earnest*was paid, nor any actual delivery made, nor any special time appointed for the delivery of the article, or the payment of the purchase money.

It is sufficient, if the vendor tender the article sold; or is ready to deliver it, when the vendee refuses it; and if no particular time is fixed for the delivery or for the payment of the price, the law says it must be done immediately, or within a reasonable and convenient time;

. Where a vendee refuses to receive' the article sold, the vendor may either rescind the contract, or may re-sell the article' and make the original vendee responsible for the difference in price.

Appeal from the Superior Court of Law of New tIiano-ver County, at Fall Term, 1841, his Honor Judge Peah-son presiding.

This was an action on the case for *&*breach of contract in not receiving and paying for a'barouche sold to the defendant, to which the defendant pleaded not. guilty.

On the trial it was proved by one Hatsfield that he was a carriage maker in Wilmington — that on the day of 1839, the plaintiff and the defendant came to his shop with a barouche — that the plaintiff told the witness, in the defendant’s presence, that he had sold the barouche to the defendant, who wished it altered in some way, and requested the witness to alter it as he should be directed by the defendant; and he, the plaintiff, would pay for it — that,the defendant then pointed out to the witness the alteration he wished made ; it was a trifling alteration in the straps of the top — that the defendant said he wished the work done in about two hours, when he would call for the barouche, and *234the witness promised to have it *ready*— that, after the plaintiff went off, the witness asked the defendant what he was to give for the barouche, and he said about $200, as well as the witness could recollect, and asked the witness what he thought the barouche ought to be worth — that the witness had the work finished within the two hours, but no one called for it, and it remained there sometime — that the plaintiff paid witness for his work. One Morris swore that in 1839, at the request of the plaintiff, he called on the defendant for the sum of $150, the price of the barouche— that the defendant refused to pay, and said he had not bought the barouche — that afterwards, on the same day, the plaintiff, in the presence of the witness, asked the defendant if he did not intend to take the barouche; that defendant replied, no, and said he never had bought it — that the plaintiff then said, I give you notice it is just where we left it. One Hatch swore that sometime in 1839, the defendant bought a few articles in his store, and said he would call in about a week and pay for them ; that he had to come to town about that time to say farewell to the plaintiff and his family, who were going to the north, and for the purpose of getting a ba-rouche he had bought. One Williams swore that, before the plaintiff went to the north, he requested him to advertise the barouche, and have it sold at auction, which he accordingly did in about one month after the alleged sale — that it sold for $96, which he received as the agent of the plaintiff and paid over to him.

The defendant did not controvert the facts, so deposed to, but insisted, 1st, That no parol contract for the sale of property is binding, unless the property is delivered — or something is paid as earnest — or some time is fixed on for its completion, because otherwise there is no consideration_ 2ndly. That the vendor must prove a tender. 3rdly. That by the re-sale at auction the vendor had waived the right to sue on the contract, if he ever had any such right. The court charged that a parol contract to sell property, such as1 a barouche, was binding, without delivery, without the payment of earnest and without fixing on a time certain. As to the delivery, the distinction was, that after delivery the *235property was changed, and it amounted to a contract executed, or sale — before delivery, it was a contract executory, but an action might be sustained for a breach. As to the payment of earnest, that was not necessary at common law to bind a bargain, and was only made so in certain cases by some English Statutes to prevent perjury, which did not apply here. As to fixing on a time, when no time was fixed on, the law presumed that the matter was to be closed within a reasonable time. As to the consideration, the promise on the one side was the consideration for the promise on the other. As to the tender, the court charged, that, when by the contract the vendor was to deliver the article at a certain place or time, to enable him to recover, he must shew that he had the article at the place and time, and was ready to comply with the bargain on his part; but when by the contract the vendee was to receive the article where it then was, it was sufficient for the vendor to shew that he had the article there, and was ready and willing to comply with his part of the contract. As to the re-sale, the court charged, that, when a vendee refused to receive and pay for the article, the vendor might leave it and sue for the whole price if he saw proper, but if he did not choose to give up a lien he had on the article for the price, he might retain the possession and sell it over, in which case, provided the re-sale was fair and *bona fide,*the price it brought would be a proper consideration in estimating the amount of damages.

The jury found a verdict in favor of the plaintiff, and a motion for a new trial being made and overruled and judgment rendered pursuant to the verdict, the defendant appealed.

*Hayiuood*& *J II. Bryan*for the plaintiff.

*Strange*for the defendant.

Daniel, J.

This is an action of assumpsit, on a *special*count for not receiving and paying for a barouche, sold by the plaintiff to the defendant. The *first*objection was, that no *parol*contract for the sale of property was binding, unless it was *delivered,*or something was paid in *earnest,*or a *236*time*.was fixed on for its completion. The judge overruled this objection, and, we think, correetly. When a contract of sale is made, it is capable of completion by either of the Tarties *°y*a *tender*immediately made, or in a reasonable thereafter. If the vendor tenders the thing, he is enti‘■tled t© the price agreed for — if the purchaser tenders the price, he is then entitled to the thing contracted to be sold, and may have detinue for the thing or assumpsit for a breach ■of the contract. *Earnest*paid is not necessary to complete a parol contract oí sale; when made, it only prevent|the ■vendor, under an.y circumstances, from rescinding the contract without the assent of the vendee; and this, by the common law, and not by any statute. The vendor’s remedy for the residue of the price is then only on the contract, or on his lion on the properly thus sold. For he is not compelled to deliver, until the residue of the priee is tendered. And when no time is fixed for the delivery of the thing and the payment of the price,-the law says k must be done immediately, or within a reasonable and convenient time.— The consideration is the mutuality of the promises. In this case, the plaintiff’s promise to deliver the barouche was the legal consideration, by which the defendant was bound to comply with his promise, either by paying the priee, or accounting in damages *on this count*in the declaration.

Secondly; The defendant insisted that the plaintiff should prove that he tendered the barouche. And so he did. The barouche was at the coach-maker’s shop — the defendant had ordered some small alterations on it — the plaintiff was to pay for them — the work was to be done in two hours— and the defendant was then to take it away from the shop. The work was done within the time agreed on — the plaintiff paid for it, but the defendant did not return and take it away. The shop was the place where the defendant was to receive the article — it was there at the time stipulated, ready for his reception. This, if not in law a tender of the article, was, at least, evidence of the plaintiff’s readiness, and that is sufficient in this action. *Rowson*v *Johnson,*1 East 203, *Waterhouse*v Skinner, *2*Bos. & Pul. 447.

*237The *third*objection was, that by the re sale of the ba-ronche at auction, the plaintiff had rescinded the contract. In *McLain*v *Dunn,*15 Eng. C. L. R. 131, the court says, that in regard to the resale of the articles, it seems clear that it did not rescind the contract. It is a practice founded in good sense, to make a re-sale of a disputed article, and to hold the original contractor responsible for the difference. If the count is *for goods sold and*delivered, he cannot, perhaps, (says Best, C. J.) consistently with such a demand, dispose of them to another; but if he sues for damages, in consequence of the vendee’s refusing to complete the contract, it is not necessary he then should retain dominion over the goods: he merely alleges that a contract was entered into for the purchase of certain articles, that it has not been fulfilled, and that he has sustained damage in consequence. There is nothing in this, which requires that the property should be in his hands, when he commences the suit; and it is required neither by justice nor by the practice of the mercantile world. It is most convenient, that, when a party refuses to take goods he has purchased, they should be re-sold, and that he should be liable to the loss, if any, upon the resale. The goods may become worse the longer they are kept, and all events there is the risk of the price becoming lower. In *Acebal*v *Levy,*25 Eng. C. L. Rep. 174, the court, in the conclusion of the opinion, say, there can be no doubt but that the plaintiff might, after re-selling the goods, recover the same measure of damages in a special count, framed upon the refusal to accept and pay for the goods bought. These authorities are conclusive against the defendant on this point in his case. See also *Sands v Taylor,*5 Johns. Rep. 395, *Martens*v Adcock, 4 Esp. Rep. 251. Where no time is mentioned in the contract of sale for its completion, and the vendor immediately tenders the article and the vendee refuses to pay the price, then the vendor has his election to rescind the contract *in toto,*or he may *bona fide*re-sell the thing and recover the difference in damages on a special count in assumpsit, for not receiving and paying for the article .contracted to be sold. *238The re sale by the vendor is not, *per*se, evidence of a rescinding of the contract. We think that the judgment must be affirmed.

Per Curiam. Judgment affirmed.