#### Samuel Whitwell and Others *versus*David Wyer and Others.

*A*contracts to sell to B twenty-five hogsheads of rum, at an agreed price, and to furnish the casks, nothing- being said concerning the size of the casks, the customary size being from 108 to 132 gallons. No rum was delivered, no payment was made, nor any memorandum of the agreement in writing. Nine days after-wards, the price of rum having risen in the mean time, A called on B, informing him that the rum was ready, and presenting a bill of parcels of twenty-five hogsheads of rum, averaging ninety-seven gallons, for which he requested payment. B then paid 1000 dollars in part of the bill, remarking that the casks were small, hut making no objection to receiving them; and the next day he sent for and received the rum. Afterwards, expressing his dissatisfaction with the quantity of rum delivered, A offered to take it back and to pay the expenses which had arisen'; but the offer was not accepted. In an action by B for the amount of the difference in price of the deficient gallons, it was holden, that the delivery of the bill by A, tire payment of the money by B, &c., took the case out of the statute of frauds; and that the bargain might be considered as then made, and as the only one of which there was legal evidence; and, consequently, that B had no ground of action.

Case upon a promise to deliver the plaintiffs twenty-five hogsheads of rum.

At the trial, which was had upon the general issue, before *Parker,*J., at the last November term in this county, the evidence of the contract relied on was as follows: On the 22d day of June, 1812, (the morning when intelligence of the declaration of war against *Great Britain*was received in Boston,) the plaintiff *Whit-well*called on the defendant *Wyer,*a distiller in *Boston,*to purchase rum. After some inquiries for news, and observations on the prospect of war, in which there was no attempt to conceal any "information, both parties exercising their judgment as to [ * *7*] the event, * *Wyer*promised to deliver to the plaintiffs *twenty-five hogsheads of rum, at fifty-nine cents per gallon,*to be ready ih a few days at the defendants’ distillery, and there to be received by the plaintiffs. The defendants, at the request of the plaintiffs, agreed to furnish the casks; but nothing was said about their size or contents. The quantity of rum was to be ascertained, on the delivery, by the gouge of a Mr. *Wheelwright.*Nothing was then delivered; no payment was made to bind the bargain; r.or any memorandum of the agreement made in writing.

It was in evidence that the defendants, from a large number of hogsheads on hand for their distillery, all of which were below the customary size, selected the twenty-five largest and best, and prepared and filled them with suitable rum for the plaintiffs; it being within the power of the-defendants to procure hogsheads of the usual *15size. On the 1st day of July, they called on the plaintiffs, and informed them that the rum was ready, at the same time presenting for payment a correct bill of parcels, specifying the particular contents of each hogshead, and the amount of the whole. The plaintiffs objected to paying the bill until they should ascertain the quantity by *Wheelwright's*gouge. The defendants answered that, should his gouge differ from their own, they would rectify the error. The plaintiffs replied that they would pay 1000 dollars in part, and the residue as soon as they could ascertain the correctness of the bill. One thousand dollars were then paid and endorsed on the bill, which was delivered to the plaintiffs. The plaintiffs remarked that the hogsheads were small, but made no objection, at this time, to receiving them; but on the next day sent for and received the rum, and found the quantity correct, as stated in the bill of parcels, the twenty-five hogsheads averaging about ninety-seven gallons each. Afterwards the plaintiffs expressed dissatisfaction with the quantity of rum delivered; and the defendants offered to take it back, and to pay all the expenses thereon ; but they did not offer to deliver other hogsheads in lieu thereof, or to * make [ * 8 ] up the deficiency. Their offer was refused by the plaintiffs.

It was in evidence that, although there were no precise or appropriate dimensions for a rum hogshead, yet the common average was from 108 to 112 gallons ; and several distillers and merchants testified that hogsheads of a smaller size were intended only for the *Guinea*market, and were never taken into view in a contract for hogsheads of rum, unless specially agreed for.

It was proved that rum at the time of the delivery was worth -cents more than at the time of the purchase.

The defendants objected that the agreement was void by the statute of frauds ; that the subsequent payment of 1000 dollars, being made specifically on the bill of the rum actually delivered, and appropriated at the time in part payment thereof, could have no operation on the original agreement, nor give validity to any other contract than such as was thereby fulfilled ; and that, if the agreement to deliver twenty-five hogsheads were binding in law, yet it was satisfied by the plaintiffs’ receiving the twenty-five hogsheads delivered, knowing their contents, and afterwards refusing to give them up.

These objections were both overruled by the judge, who directed the jury that the said agreement was taken out of the statute of frauds by the subsequent payment, and remained undischarged by the subsequent transactions; that the defendants were bound by the contract to deliver hogsheads of the customary size, if they were satisfied that the bargain had reference to such hogsheads, *16that being presumed to be the intention of the parties at the time although nothing was said upon the subject; and that, if they believed, from the evidence, that the hogsheads delivered were less than the customary size, they were bound by law to find a verdict for the plaintiffs ; and that the measure of damages was the difference in the price of the article at the time of the sale and of the delivery.

The jury returning a verdict for the plaintiffs accordingly, the defendants moved for a new trial, on the ground of a misdirection by the judge. [ * 9 ] * The cause was briefly argued by *Roclcwood*for the defendants, and *Thatcher*for the plaintiffs; after which the opinion of the Court was delivered by

Sewall, C. J.

The general question arising upon the evidence in this case is, whether the defendants performed their contract and bargain, by the delivery of the twenty-five hogsheads of rum specified in the bill of parcels, upon which they received a payment in part from the plaintiffs.

The argument for the plaintiffs is, that the contract proved entitled them to a delivery of twenty-five hogsheads, of what is called the customary size; which was not performed by a delivery of a like number of hogsheads of the smaller size ; and the plaintiffs have obtained a verdict for the deficiency in the quantity of rum delivered, compared with the quantity supposed to be sold, and the deficient gallons have been estimated at the increase in price which happened in the interval of nine days, between the sale and the delivery of the article. And if that was the bargain proved, when all the evidence competent in this case is considered, the verdict is not to be disturbed. On the other hand, the defendants contend that the bargain proved is according to the specification in their bill of parcels, so lar as the question of the quantity of rum to be delivered is concerned; and that the acceptance of those hogsheads by the plaintiffs precluded them from any further demand for hogsheads of other dimensions, or for any supposed difference between those delivered and hogsheads of what is called the ordinary size.

We concur in the opinion expressed at the trial, that the bill of parcels, and the payment on the 1st of July, have so direct a reference to the bargain of the 22d of June, as to take the case out of the statute of frauds, so far as to establish a contract which may be enforced, notwithstanding the provisions of the statute; and the bargain proved may be considered as then made. (1)

But the terms of the bargain remain to be *settled.*The *17evidence resulting from the conduct of the parties, from the * bill of parcels, and the payment thereon on the 1st [ * 10 ] of July, is essential. There is no other competent evidence of any bargain; and the bargain proved by it is, we think, of hogsheads of the size then specified as the hogsheads ready for delivery, with a statement of their capacity and contents. The plaintiffs then accepted this specification, notwithstanding their remark upon the smallness of the size; and upon this evidence the performance of the contract, then acknowledged by the defendants, was sufficiently proved.

It is not, in our opinion, competent for the plaintiffs to accept this acknowledgment of the defendants, by a specification of twenty-five hogsheads ready for the plaintiffs, as the performance of the bargain acknowledged on their part, and then to use this evidence as the means of proving another and a different contract. *(2)***Where you rely upon a confession, you must take it all together; and the rule is peculiarly necessary to be observed where the confession is in a form of evidence essential to the establishment of the contract to be proved, as in this case.

For by the statute of frauds, the oral testimony of the conversation and dealing of the parties on the 22d of June is not, of itself, either adequate or competent evidence of a sale and bar gain, which the law will enforce, against the one party or the other. The payment in part on the 1st of July, or the memorandum then delivered, are necessary means of evidence to show a sale. The acquiescence of the plaintiffs in that memorandum, and the payment made upon it, certainly afford better evidence of the intent of the parties than the proof of the customary size of hogsheads, understood in some, but not in all, sales of rum, when the bargain is expressed in that species of casks. It is not in all; for any allusion to the *Guinea*trade repels a presumption of a larger size, and reduces the bargain to hogsheads of the smaller size. Now, in the case at bar, the specification delivered to the plaintiffs, and accepted by them, is at least of as much force for this purpose as an allusion to the *Guinea*trade. In short, the plaintiffs must * take the bargain, as they are able to prove it by that [ * 11 ] competent evidence which the statute requires.

Judge *Parker,*who tried this cause, adopts this opinion, upon further considering the subject, and concurs with us in the decision.

The verdict is to be set aside, and the defendants are entitled to a new trial. If the counsel for the plaintiffs will advise their clients *18respecting it, and if they cannot make a better case, perhaps they will not choose to insist further on their demand.

The plaintiffs afterwards, agreeably to the intimation of the Court, became nonsuit, *(a)*

(1)

*2 B.*& P. 238, *Saunderson*vs. *Jackson & Al.*

(2)

 2 *H. Black.*68, *Rondeau*vs. *Wyatt.*

(a)

*Damon*vs. *Osborn,*1 *Pick. 476.*