#### Clark *v.*Tucker and Lord.

Where a sale of goods is made on an agreement that the price shall be applied to the payment of a precedent debt, such price must be actually applied by a receipt or otherwise, to bring it within the exception in the statute of frauds, founded on payment of all or part of the price.

In order to constitute an acceptance and receipt of the goods, to take a sale out of the statute, there must be an act of delivery on the part of the seller, as well as an act of acceptance by the buyer.

Where goods in the possession of a factor, were sold by a parol agreement, and a constructive delivery was set up, first by a letter at the time from the buyee’s agent to the factor : and second, by a letter a fortnight afterwards, by the seller to the factor; it was *held,*that the sale was void, because the seller did not participate in the act of delivery sought to be inferred from the first letter, and because the buyer did not accept and receive in connection with the second. *Held*also, that the second letter was too late ; and that an act of delivery by notice to the factor, must be concurrent, or substantially at the same time that the contract is made.

Whether the taking out of a foreign attachment, (naming a garnishee,) giving bail therefor, and prosecuting it after service ; will make the attaching creditor liable in trespass or trover, for goods in the hands of the garnishee, whom the sheriff has summoned, leaving the goods in his possession ; there being no direction by the creditor to levy on any specified goods? *Quere*

Sept. 14th ;

Oct. 28th, 1848.

The declaration in this cause, contained two counts in trespass for taking certain hats of the plaintiff in the city of Philadelphia, and one count in trover for the same hats. The defendants pleaded not guilty.

Upon the trial before Sandford, J. in June, 1848, the plaintiff called as a witness, Nichols H. Babcock, who testified that he was a hatter, and in the spring of 1846, was doing business in the Third Avenue, in the city of New York, having his store and shop on the first floor, and residing in the residue of the building. On the 3d of April, 1846, he found himself insolvent, and at that time he was indebted to the plaintiff in more than two thousand dollars,, for borrowed money. Two promissory notes were produced for $1000 each, made by the witness to the plaintiff, one at nine months, dated Sept. 1st, and the other *158four months, dated Sept. 16th, 1845, which he stated were for the plaintiff’s notes of the same amount, lent to him, and paid by the plaintiff. On the note last mentioned, there was an indorsement of $941 12, dated April 3d, 1846. The witness further testified, that on the 3d of April, 1846, he sold his stock of hats in his store in the Third Avenue, to the plaintiff, who resided at Clyde, Wayne Co. Theodore Clark, the plaintiff’s brother, residing in New York, acted as his agent in the transfer. A bill of sale or invoice, was shown to the witness, which he said was made and delivered at the time. This bill was dated April 3d, 1846, and contained a long detail of items of hats, caps, and hatter’s stock and fixtures, with the prices carried out. It was footed at $941 12, and was receipted in full by the witness.

The witness further testified as follows :

The hats amounted to $941 12, and were endorsed at the time on one of the notes for $1000. I transferred at the same time, a quantity of hats which I then had in the hands of John W. Kester, in Philadelphia, upon which I had received an advance of about $891, besides his commission. The hats were invoiced at the time at $1592, and I considered them worth the invoice price. (The witness was here shown two papers, being an invoice and accounts of sale from J. W. Kester, in letters of January 30, 1847, and February 4, 1847.) There was no bill of sale of the Philadelphia hats; they were transferred on the same day as the others, 3d April. They were not included in the bill of sale; the transfer was verbal. We could not make an inventory of them, *not*knowing how many of them had been sold by Kester. The plaintiff came down from Clyde to New York, about a week after the sale of the hats. At his request, I gave Mr. Kester notice of the transfer, on the 17th of April, 1846. This notice was in writing, and a true copy of it is now shown me.

Witness still owes the plaintiff; the amount depends upon how much balance would be due on the Philadelphia hats, after paying Kester’s claim. In May, after the hats were attached in Philadelphia, I called on Kester and told him I was prepared to pay what was due on the hats. He refused *159to deliver them because of the attachment. My estimate of $600 being due on the hats, went on the idea of the hats fetching what they were invoiced at. I considered they were worth what they were invoiced at. At the time of this transfer, Theodore Clark acted for the plaintiff, who was at Clyde ; he was sent for and came down.

Being cross-examined, the witness said—The hats in Philadelphia were not included in the bill of sale produced here. We made no inventory of them, not knowing how many had been sold. Mr. Clark was to allow the invoice price of them. They were worth the invoice price. No provision was made for any that might be sold by Kester below the invoice price. 1 had no regular invoice of the hats. They were left at different times. I had memorandums of them. Don’t know that I had any written memorandums of the amount which Kester had advanced on them. He had advanced me his notes on them. I know the amounts of the notes. Clark took the hats at the invoice price. I did not know what particular sum they would amount to, after paying Kester. No particular sum was agreed on for the price, as it was not known what Kester had sold nor what he had on hand. There was neither a bill of sale, nor a receipt, given for the Philadelphia hats; no paper was given on the transfer of the Philadelphia hats prior to the letter of 17th April; no bill of sale ; no receipt for the price ; no papers were made. On the 17th April, I wrote the notice in Kester’s office, and delivered it there to Kester. At the time the letter was written, no particular amount was fixed upon to be allowed for the Philadelphia hats. Nothing was agreed as to the price, in case any hats had been sold. No provision was made about the price of the hats, in the event of sales made below the invoice price by Kester, as to Clark’s bearing the loss. There was no paper made afterwards in relation to the hats in Philadelphia.

Direct examination resumed.—(It is now agreed that the defendants in this suit arrested the witness on a Stillwell warrant, on the 7th May, 1846, and that he was examined on the 8th and 9th of May, 1846, before Judge Oakley.)

In the course of May, 1846, I went again to Philadelphia, at *160the request of Mr. Clark, to pay off Mr. Kester, and sell the hats. The time I went to Philadelphia for this purpose, was after my examination here on a Stillwell warrant. Mr. Kester refused to deliver the hats until the attachment suit was settled.

Cross-examination resumed.—I had no money from the plaintiff to redeem these hats from Kester, but I had his signature to a blank paper, with authority from him to raise the money and pa3r Kester, and sell the hats to my customers in Philadelphia ; if I could not negotiate his paper, I was to return and he would raise it otherwise ; and in case I could not sell the hats, to bring them to New York and let him have them. Some of the Philadelphia hats were sold by Kester below the invoice price. I failed the last of March or first of April, 1846. I owed the defendants $590, and upwards. The whole of my indebtedness at that time was about' $5000 or $6000. I think not a fifth of it has been paid. I have paid defendants nothing.

Direct examination resumed.—I was to sell the hats for the plaintiff. He wished me to go on and sell the Philadelphia hats if I could, and if I could not sell them, to redeem them and bring them to New York.

The defendants then further cross-examined the witness, to show that there had been no change in the possession of the goods sold in the Third Avenue; but the point was not discussed at bar, and the testimony is omitted.

Theodore Clark, called for the plaintiff, testified that he was the agent of the plaintiff, in 1846, when the sale of goods contained in the bill of sale, spoken of by Babcock, was made. At the same time that goods in the 3d Avenue were sold, Babcock sold to my brother his remaining interest in the hats in the hands of J. W. Kester, in Philadelphia. No bill of sale was made, but it was a bona fide sale. I don’t recollect whether an order was given by Babcock. I don’t remember that there was any transfer in writing, or any receipt endorsed. I wrote to Kester, I think, on the 3d of April. I have no copy of the letter.

The plaintiff then read the examination of John W. Kester, who testified as follows:—He resides in Philadelphia. There was an attachment served upon me for goods in my possession *161belonging to N. H. Babcock. I know it by the sheriff’s officer serving and leaving a summons with me at my store in Philadelphia, on the 9th May, 1846. Witness now produces a copy of the summons served on him, in a suit by the now defendants against Babcock. There has been no other paper than this served upon me at the suit of the defendants, except some interrogatories in that suit.

No other attachment has been served upon me at their suit; nor were any goods taken out of my possession under their attachment.

Being cross-examined he said—When the sheriff or his deputy called, I stated of course that there had been goods in my hands belonging to Babcock, but that he had left a transfer of them to another party, Mr. Clark, of Clyde, and that I should hold them, or the proceeds whatever there might be left after paying myself, till I knew to whom I should pay the balance. I was to know this through the proceedings in court under this attachment. I understood this summons to attach the goods, or any balance that might remain in my hands, after paying my claim, that had belonged to Babcock, or that were placed in my hands by him.

I told the sheriff that I would hold the goods after my own claim was satisfied, subject to the attachment, and I have since so held them and the proceeds.

The attachment suit of Tucker and Lord *v.*Babcock, is still pending in Philadelphia, and it bars my paying the money over to Sylvester Clark. The sheriff did not take an account of the goods or their proceeds.

The witness produced an account of sales and proceeds, to June 12, 1847, which he said was correct. The balance, after paying himself, was $86 52, and he had 120 hats then unsold.

Clark demanded these goods or the proceeds through his brother, by letter, and Babcock, as the agent of Clark, called and offered to pay off my claim and take the balance of the goods or proceeds; but I declined to deliver the goods on account of the pendency of this attachment suit. I still hold the property subject to that suit, and shall, unless the sheriff releases me *162from the attachment; but I should not deliver it to him without consulting counsel.

The letter written by Babcock in the witnesses store, was as follows:

“ *New York, April 17,*1846.

“Mr. J. W. Kester,

“ Sir—All the hats which I left with you as collateral security for the payment of the -amounts you have advanced me, I wish you to hold subject to Mr. Sylvester Clark’s (of Clyde) order, as I have sold all of them to him, and he is to pay the amount now due on them to you.

*“*Yours respectfully,

*“ N.*H. Babcock.”

The witness said this letter was never delivered to Clark. He was not there. I think I had no correspondence with Theodore Clark, until after the attachment.

The witness identifies two letters written by himself to N. H. Babcock, one dated February 4, 1847, and the other dated January 31, 1847. These letters were read; they contained invoices of the hats Kester had received from Babcock, in 1846, taken from Kester’s books.

The plaintiff also read' an exemplification of a foreign attachment, and the subsequent proceedings thereon, in the county court of the city and county of Philadelphia, in favor of the now defendants against N. H. Babcock.

The writ was issued May 9, 1846, and was entered as being issued on bail given. It directed Kester and one McCalla, to be summoned as garnishees. The sheriff’s return stated that he had attached as within commanded, by giving an attested copy to Kester, &c., and summoned them as garnishees. Tucker and Lord obtained judgment against Babcock by default, and a *scire facias*against Kester as garnishee, was issued and pending, on which he had been examined on interrogatories.

The plaintiff called J. N. Cordozo, who testified that he had been a counseller at law in Pennsylvania, and was familiar with the law of foreign attachment in that state. It is entirely statutory. He proved the statute from Dunlap’s Laws, and *163said, the supreme court of that state have decided, that by service of such a copy of the summons as is contained in the exemplification, the goods of the defendant in- the hands of the garnishee, are deemed as actually taken and seised, without being actually taken by the sheriff.

The plaintiff also offered to read two letters from Theodore Clark to Kester, one 22d May, and one 24th December, 1847, to which the defendants objected as being written after the attachment in question, and the same were excluded by the judge.

Hereupon the plaintiff rested, and the defendants’ counsel moved for a non-suit on the grounds; 1st. That the plaintiff had not in law shown title to the goods sued for, there being no evidence of any memorandum in writing containing the terms of sale, or of any payment of price either in money or by any agreed credit, or of any delivery of the goods to the plaintiff by Babcock; and that in connection with the insolvency of Babcock at the time of the pretended transfer, the same was null and void.

2d. That the plaintiff had shown no such taking by the defendants, as subjected them to an action of trespass.

3d. That the plaintiff not being entitled to the possession of the hats in Philadelphia, at the time of the attachment, he could not, under the evidence given, sustain an action of either trespass or trover.

The judge ordered a non-suit to be entered, which the plaintiff now moves to set aside.

*R. H. Waller,*for the plaintiff,

cited *Tuxworth*v. *Moore,*9 Pick. 347; *Carter*v. *Willard,*19 ibid. *1; 2*Kent’s Comm. 502; 7 T. R. 278 ; 1 Esp. R. 598 ; 3 B. & C. 423. As to the taking by defendants, *Wintringham*v. *La Foy,*7 Cow. 735 ; *Phillips*v. *Hall,*8 Wend. 610 ; *Root*v. *Chandler,*10 ibid. 110 ; and as to his own possession, *Thorp*v. *Burling,*11 John. 285 ; *Buck*v. *Aiken,*1 Wend. 466.

*D. Lord,*for the defendants.

By the Court. Sandford, J.

The subject of the sale *164relied upon by the plaintiff, was a quantity of hats in the possession of Kester in Philadelphia, and held by him -for sale and for the repayment of his advances. The contract of sale was made in New York, and its validity depends upon our laws.

There was no note or memorandum of the contract made in writing. The letter delivered by Babcock to Kester, two weeks afterwards, aside from other objections to its effect, did not contain, or profess to contain, a statement of the contract of sale. The entire omission of all written evidence of the alleged sale,when so much form was used on the same occasion in respect of the goods in Babcock’s store, is quite unaccountable; and on another point of the case, would present a serious barrier to a recovery.

No part of the purchase money was paid by the buyer. It is true that the price was to be paid by crediting it on the indebtedness of Babcock. Such was the agreement, but no act was done to carry it out. It was no payment until the application was made. In the other cotemporary sale, the contract was consummated by actually indorsing the price on one of the notes. In this instance no indorsement was made or receipt given. It went no further than the mere contract to pay in that mode ; and so far as the statute is concerned, it no more aids to prove the contract valid, than does the agreement to pay the price, in an ordinary sale, where actual payment is expected.

There is but one other circumstance left, which could relieve this contract from the operation of the statute of frauds. Did the buyer accept and receive a part of the goods sold, or the evidences, or some of them, of Babcock’s claim for the surplus after paying Kester? It is not claimed that the plaintiff ever actually received any of the goods, or any such evidences of Babcock’s right; but it is contended that there was a sufficient constructive delivery to the plaintiff.

The letter of Theodore Clark, (the plaintiff’s agent in the affair,) to Kester, on the day of the sale, is relied upon. But that is wholly insufficient. It was merely a belief of his that he wrote such a letter, while Kester’s testimony is very decided that he did not. It does not appear what the supposed letter con*165tained, or that it stated anything respecting the sale. And finally, if it were written and were ever so explicit on that point, it would not support the sale, because the seller did not join in it. An act of delivery, must of necessity, proceed from the seller. The buyer can only accept it and receive the property.

The letter of Babcock to Kester, written in Philadelphia, two weeks after the bargain was made, is the only ground remaining, to sustain a constructive delivery. As to this, it came too late. In order to make such an act a constructive delivery, it should be concurrent with the bargain. Not perhaps at the same moment of time, but substantially at the same time and as a part of the same transaction. This agreement is claimed to have been made on the 3d of April, and to have been valid when made. An act of delivery on the 17th of April, is too far removed to give force to a bargain, otherwise invalid, on the third.

Independent of this objection, there is a further difficulty which cannot be obviated. The buyer was not present or represented in the alleged delivery. The buyer must accept and receive the property, or the attempted delivery is unavailing. It may be said Babcock was the agent of the plaintiff at that time ; but if he were, he could not in this delivery act in his own behalf as seller, and at the same time act as the buyer’s agent to accept and receive the property sold. It will hardly be contended, that he could sell his goods to the plaintiff, by an agreement made by himself as seller, with himself as the plaintiff’s agent. Yet the delivery and acceptance by the letter of April 17th, is equally objectionable. Kester cannot in any sense, be deemed the agent of the plaintiff, to accept and receive the property sold. The authorities cited by the plaintiff, do not sustain his positions, and one of them, *Carter*v. *Willard,*19 Pick. 1, decides that if there had been a bill of parcels made and delivered by Babcock to the plaintiff on the 3d of April, the sale would not have been valid, without giving notice to Kester.

The cases in our courts are numerous, hut it is needless *to*cite them at large. The last in point of time, *Schindler*v. *166Houston, (1 Comstock’s R. 261,) is in our highest court, and is conclusive against the plaintiff.

We are perfectly clear, that the alleged sale of the property in question was void by the statute of frauds. The case proves the wisdom of the statute. Babcock had no invoices of the property and scarcely the materials for making one. He had no account of the sales made by Kester, either as to the articles sold or the price. No price was fixed between him and the plaintiff; none could be fixed, upon the information they possessed. It was all indefinite and uncertain, and left open upon parol evidence, to be moulded or applied, as subsequent emergencies, or the fallible recollection of the parties, might direct.

Our conclusion on the first question presented, relieves us from passing upon the other points made at the trial, neither of which appears to be free from difficulty.

Motion to set aside non-suit denied.