#### David Dows, *et al.*plaintiffs and respondents, *vs.*Archibald Montgomery, defendant and appellant.

*1.*Merchandise is delivered, within the meaning of the statute of frauds, if sold by samples while on board of a vessel and stored by the vendors with a third person, by whom it is compared with such samples, if such acts are done at the request of the vendee.

2. It is sufficient evidence of the acceptance by a vendee of the title to goods sold to him by sample, if he receive and retain for five days without objection measurer’s returns in favor of the vendors, and indorsed hy them to him, of the quantity of such goods, at his request, stored in the warehouse of a third person, and there compared with such sample, after the vendors had accepted an offer of such vendee to buy them on a credit of ten days, provided the latter would pay the storage during that time, and also direct such warehouseman to deposit, for his benefit, with the vendors the receipts for such merchandise given by such warehouseman in favor of the latter and indorsed by them to the vendee.

3. The agency of the warehouse keeper for the vendee, is sufficiently established in such a case, by proof of a direction of the latter to the former to do certain acts in regard to putting such merchandise in order, and to compare it with the samples as received.

4. Where a sale and delivery of goods are found upon conflicting evidence hy a referee, the same ought not to be disturbed to let in the defense of the statute of frauds.

(Before Robertson, Oh. X, and Monell and Garvin, JX)

Heard May 9, 1866;

decided March —, 1868.

Appeal from a judgmént entered upon the report of a referee.

The action was brought by the plaintiffs,- composing the firm of David Dows & Co. against the defendant, Archibald Montgomery, to recover ($12,314.94) the price, (with half measuring added,) of two boat loads of wheat on board two boats, ( *Wiltsie*and *Maria,)*lying in the port of New York, sold by the plaintiffs to the defendant, at his request, on the fifth day of June, 1861, to be put in store, for account of the defendant, for ten days, at short rates of storage, (or 1J cents a bushel for ten days,) to be paid hy the latter; who was also to pay the plaintiffs $1 a bushel- within ten days of the said sale, and half the expense of measuring. *446"Which cargoes, immediately upon such sale, were, at the request of the defendant, sent to the warehouse of a Mr. ■Barber, at the Atlantic docks, and received by him, on the request and for the account of the defendant, to be stored 1 for his account, at 1-j- cents a bushel, for ten days. The defendant denied in his answer any contract of. sale and purchase of the said wheat 5 also that said wheat was ever delivered to or received by him, or stored on his account by his knowledge or consent; and controverted all other material allegations in the complaint. Afterwards, under an order, (made January 21, 1862,) allowing him to serve a supplemental answer, reserving all questions, until the trial, as to its sufficiency and effect, the defendant put it in, alleging that after issue joined the plaintiffs had rescinded and repudiated the contract of sale and delivery of the wheat alleged in the complaint, and, without notice or consent on the part of the defendant, sold and delivered the wheat to other parties. To which the plaintiffs réplied, denying the rescission, &c. but admitting the re-sale, &c.; leaving the defendant indebted, after crediting the proceeds, for a balance of $2117.16 with interest from 9.th September, 1861.

All the issues in the action were referred to a referee to hear and determine.

The following facts, in substance, were found by the referee :

1st. The plaintiffs were partners under the firm of David Dows & Co.; and the defendant a merchant doing business under the name of Montgomery Brothers.

2d. On the fifth day of June, 1861, the plaintiffs sold to the defendant two boat loads of wheat, in the port-of New York, (from the boats *Maria*and Wiltsie,) at one dollar per bushel, to be paid within ten days thereafter.

3d. Such sale was by sample, and there was a certain quantity of such wheat at t,he time of said sale, and the delivery thereof in store, as thereinafter mentioned, to wit, *44712,284^- bushels, and that the price thereof, as agreed,' including one-half measuring thereof, which by the custom and usage in the. city of New York was to be paid by the .purchaser, amounted to $12,314.94.

4th, Such wheat was, by arrangement between the parties and at the request of the defendant, delivered to and stored with Mr. Barber for the defendant and on his account; Barber, as the agent and at the request of the defendant, received such wheat for him and compared the same with the samples; and the bulk was proved by Barber to, and did in fact, correspond with them.

5th. The measurer’s returns of such wheat, without any instructions from any one, were sent to the plaintiffs, as vendors, as is usual, and immediately within four days after the sale indorsed by them and sent to the defendant. Such indorsement and delivery of the said returns was evidence of the defendant’s title to such wheat, and his right to the possession thereof; such returns were returned to the plaintiffs with notice that the defendant would not take the wheat, on the fourteenth day of June, 1861. ■

6th. Warehouse receipts signed by Mr. Barber, soon after such delivery of such wheat, without instructions or directions from any one, were made out in the name of the plaintiffs, and on being brought to them by Barber were indorsed by them and re-delivered to him, with a request that he would deliver them to the defendant as the rightful owner of the wheat. He offered them in the street to the defendant, who requested him to leave them with the plaintiffs, as he could not take the wheat away for some days, and the same were accordingly so left with the plaintiffs for the defendant and at his request.

7th. The defendant bought such wheat for shipment and exportation; and the plaintiffs had reason to suppose, and did suppose, that he intended to export the same. It was not in good condition for shipping; but wheat in the *448same condition was being shipped and exported from Hew York at that time.

8th. On the 14th day of June, 1861, the defendant repudiated the contract and refused to pay for the wheat or regard it as his or in his possession, upon the ground that the wheat was not in good condition or fit to export, or such as the plaintiffs had agreed to deliver. '

9th. In August, 1861, after the joining of issue in this action, the plaintiffs applied to the defendant to direct as to the disposal of the wheat for account of whom it might concern, and without prejudice to the legal rights of the parties; the defendant declined to do so; the plaintiffs thereupon, after giving notice to the defendant that they would sell the same for account of whom it might concern, (the defendant making no objection thereto,) sold the same for the highest price that could be got therefor, and for the full market value of such wheat at that time, and received as the net avails of the said sale, the sum of $10,373.04, leaving due to the said plaintiffs, on the ninth day of September, 1861, $2117.16.

10th. An account of such sale was rendered to the said defendant on the 9th' day of September, 1861. At the time of such sale such wheat was depreciating in quality, value and price. The sale was made to protect the interest of all concerned; and in the transaction the plaintiffs expressly reserved all the rights under the contract for the sale of such wheat to the defendant and did not rescind the same.

The following were the referee’s conclusions of law:

1st. That the contract of sale from the plaintiffs to the defendant was fully executed by the delivery of the wheat to and the acceptance thereof by, the defendant.

2d. That at the expiration of ten days from the said day of sale, the defendant became liable to pay to the plaintiffs the purchase price of the said wheat,' and one half the weighing thereof.

3d. That by the sale of such wheat the plaintiffs did not *449rescind the contract or abandon the sale to the defendant, but insisted upon and affirmed the same.

4th. That the defendant was entitled to be allowed as a counter-claim or set-off in this action the net avails or proceeds of the said sale so made by the plaintiffs.

5th. That there was justly and legally due the plaintiffs from the defendant, on the 9th day of September, 1861, the sum of $2117.16 over and above the amount realized upon the sale of such wheat by the plaintiffs; and said sum, with interest, was still due the plaintiffs; and they were entitled to recover the same of and from the defendant, with costs of this action.

Judgment being entered accordingly, the defendant appealed.

*J. IS. Jenness,*for the appellant, defendant.

I. Upon the facts in the case,- no valid contract of sale of the wheat in question was made, under the *statute of frauds.*There having been neither contract in writing, nor part payment, the only question remaining upon this subject, is, whether the evidence has established *an acceptance and receipt of the wheat*by the defendant.

1. So far from accepting and receiving the wheat, the defendant, from the beginning to the end, *resolutely resisted*any acceptance and receipt of it, actual or implied. When the warehouse receipts were tendered to him, he at once *refused*to accept and receive them. ■ When the measurer’s returns were sent to him, he *also refused*to accept them, and returned them as soon as he ascertained that the plaintiffs persisted in delivering wheat in bad shipping order. When the wheat itself was shown him, he at once *rejected*it, as not the kind of wheat he bought.

2. Moreover, as to the indorsed receipts and returns, even though the defendant had actually accepted and received them, such an acceptance and receipt of those documents, is not such an acceptance and receipt of the *450wheat *itself,*as satisfies the statute of frauds. Such documents amount only to *orders on the warehouseman;*until such orders are actually presented by the purchaser to the warehouseman, and the goods are, in obedience to them, actually *transferred, into the name of the purchaser,*no acceptance and receipt of the goods is.made out under the statute of frauds. *(Farina*v. *Home,*16 *M. & W.*119. *Bentall*v. *Burn,*3 *B. & C.*423. *Lackington*v. *Atherton,*7 *M. & Gr.*360. *McEwen*v. *Smith,*2 *House of Lords Cases,*309. *Tanner*v. *Scovell,*14 M. *& W.*28. *Hunt*v. *Hecht,*30 *Eng. L. and Eq.*524. *Carter*v. *Touissant, 5 B. & Ald.*855. *Bill*v. *Bement,*9 *M.*& *W.*36. *Ives*v. *Polak,*14 *How. Pr.*414. *Shindler*v. *Houston,*1 *Comst.*261. *Outwater*v. *Dodge,*7 *Cowen,*85. *Langeman*v. *Stevens,*5 *N. Y. Leg. Obs.*19. *Ely*v. *Ormsby,*12 *Barb.*570.)

II. The statute of frauds is not satisfied by reason of any words or acts of the warehouseman, (Barber.)

1. He was *not*appointed the defendant’s agent' to accept and receive the wheat, or to store it on the defendant’s account. The most that can be claimed, from the testimony of Dows and Barber, (treating .it as uncontradicted,) is, that the defendant requested Barber to *screen and blow*the wheat, and to *see that it corresponded to the sample,*when he *took it into store.*The operation of screening and blowing was to be done, whether the wheat was in good or bad condition, and in no way establishes an acceptance of the wheat by either the defendant or Barber. It had no more effect upon the question of acceptance, than a request that Barber should hoist it out of the boats. As to the pretended request, that Barber should see that *the wheat corresponded to sample,*he had no power to *reject*the wheat under *any circumstances.*

2. Moreover Barber *failed to make*the requested examination, at the time he took the wheat into store.

3. But, an entire answer to this attempt to charge an accentance and receipt of the wheat on the defendant, by *451virtue of an alleged acceptance and receipt of it by Barber, on the defendant’s account (even admitting that Barber was duly appointed the defendant’s agent for that purpose,) is to be found in the consideration that Barber did not, in fact, accept and receive the wheat for account of the defendant. *(a.)*On the contrary, he' accepted and received the wheat into his warehouse, on -account of the plaintiffs. The wheat was at all times stored in their name. *(b.)*'Measurer’s returns were made out, and warehouse receipts issued by Barber in the name of D. Dows & Co. but so cautiously worded for the preservation of the property, lien, and possession, of the plaintiffs in the wheat, as to be expressly stamped “ non-negotiable.” (c.) Could it be contended that, from any. thing that had been done by either Barber or the defendant, by way of acceptance and receipt of the wheat, the plaintiffs had lost their right of lien for the price, in the event of the defendant’s insolvency?

4. The subsequent sale and delivery of the wheat in question on August 15 to third parties, having been made by the plaintiffs without any re-transfer' or re-delivery from the defendant, and without any authority from the defendant, is conclusive evidence that the plaintiffs had at all times retained the actual and exclusive possession, and control -of the property, and is utterly inconsistent with any acceptance and receipt by the defendant, or his agent. The plaintiffs’ original possession of the grain, is thus conclusively shown to have never been disturbed.

5. Indeed, such subsequent sale and delivery to third parties, has been well set up in our supplementary answer, as *a lar*to the further maintenance of this action for the sale and delivery of the wheat to the *defendant.*Only an action for *goods bargained and sold*could be brought, after such an event; and obviously the latter action could not be maintained, under the present circumstances, under the statute of frauds.

*452*C. Van Santvoord,*for the respondents, plaintiffs.

I. The facts found by the referee, being supported by sufficient evidence, notwithstanding conflicting testimony as to circumstances of the sale and delivery, the finding of the referee should be held to be conclusive. *(Osborn*v. *Marquand,*1 *Sandf.*457. *Mann*v. *Witbeck,*17 *Barb.*388. *Mazetti*v. *New York and Harlem Railroad Company,*3 *E. D. Smith,*98. *Heritage*v. *Hall,*33 *Barb.*347.)

H. The delivery of the two cargoes of wheat, on the 5th June, 1861, the day of the sale, at the warehouse of a third party, pursuant to the arrangement between the parties, and at the request of the defendant, to.be stored with such warehouseman for the defendant and on his account, and the receipt by the former, as the agent of and at the request of the latter, of the wheat, for him, and such agent’s apqiroval of the bulk as corresponding with the samples by which the wheat was sold, (with which it did in fact correspond,) followed by the indorsement and delivery of the measurer’s (weigher’s) returns within, four days after the sale, to the defendant, was a sufficient delivery to pass the title, (either without or with the aid of the indorsed measurer’s returns,) and a sufficient acceptance and receipt of the wheat within the statute of frauds; notwithstanding the return to the plaintiffs of the measurer’s returns, and the repudiation by the defendant of the contract on the 14th of June, The very delay in the repudiation of the contract for so long a time after the delivery at the warehouse from the 5th to the 14th June, was of itself sufficient evidence of acceptance by the defendant, within the provisions of the statute in that behalf. In 2 *R. S.*136, § 3, *subd. 2, “*actually ” is omitted; the reasons of this omission will be found in revisers’ note to this section (3 *R. S. 2d ed.*657.) *(Hollingsworth*v. *Napier,*3 *Caines,*182,185, *and cases cited. Searle*v. *Keeves, 2 Esp.*598. *See also Elmore*v. *Stone, 1 Taunt.*458; *Wilkes*v. *Ferris,*5 *John.*335, 344; *Gray*v. *Davis,*6 *Seld.*285; *Outwater*v. *Dodge,*6 *Wend.*397, *453402; *The People*v. Haynes, in *Court of Errors,*14 *Wend.*546, 562.) .More particularly as to requisite acceptance. *(Morton*v. *Tibbett,*15 *Adol.*& *Ellis, N. S.*428. *Bushell*v *Annaman,*15 *id.*441. *Spencer*v. *Hale,*30 *Verm. Rep.*314. *Hunt*v. *Peck,*20 *Eng. Law & Eq.*524.)

HI. As to the defendant’s objection that the sale was rescinded by the resale after issue joined in the action, there is no ground for it. The defendant did not authorize the resale; that was not required, because it might have involved an admission inconsistent with the proposal to resell without prejudice to the rights of either party, as claimed at the time of such resale. But the resale was made on notice to him, and with his assent that it should be so sold without prejudice, necessarily implied by his not objecting to such resale, nor to the accounts rendered on such resale in which the proceeds are applied on account of the defendant’s purchase. *{See Cairnes*v. *Bleecker,*12 *John.*300.) Although the defendant raises this objection by exception, he does not except to the allowance by the referee of the,proceeds of the resale to him, and the credit thereof to him.

IV". There being no allegation in the answer that the plaintiffs warranted the wheat in question to be in good condition for shipping, or request in the case to the referee so to find, or any thing in the evidence as presented in the case, to warrant such finding, the exception for not so finding, is not well taken. The case was a sale of wheat not in *good*condition for. shipping, but in the same condition as wheat then being shipped and exported from New York, of which the bulk was as good as the samples by which it was sold.

Robertson, Ch. J.

The main if not only question presented in this case is, whether there was a sufficient delivery of the wheat in question by the plaintiffs to the defendant to take the case out of the statute of frauds. It was originally on board of two vesssels, *(The Wiltsie*and *Maria,)**454when the negotiations for the sale of it commenced between the parties. After their close it was removed by agreement’ between the parties from on board of such vessels to a warehouse belonging to a Mr. Barber, which had a grain elevator attached. The referee found that such wheat was sold by the plaintiffs to the defendant by sample, and was “ by arrangement of the parties and *at the request of the defendant, delivered to and, stored with Mr. Barber, for the defendant and on his account,’’*And that “Barber, *as the agent of and at the request of”*the defendant, received such wheat and “ compared it with the samples,” with which the bulk corresponded. This of course is decisive of the question of delivery within the statute of frauds, if sustained by the evidence.

One of the plaintiffs (David Dows) testified that in June, 1861, (5th) after a first ineffectual attempt at a sale to the defendant he spoke to him again about the wheat, in the Produce Exchange, in New York, where he had samples on a table. The defendant offered to give a dollar a bushel for it, but did not pay it for ten days, and said that he would take it at that price “ at short rates ” (being less than full) *storage,*or 1J cents for ten days. The plaintiff Dows then said he would sell it, on those terms, provided 'the defendant would pay the expense of the storage. The plaintiffs then having agreed with Barber to take in the wheat, at the short rates of storage, brought him to the defendant, and informed the latter of that agreement. “It was then arranged that Barber should take the wheat in *for account of the defendant.”*One of the parties ■ gave the samples of the wheat to Barber. The defendant told him to see that the cargoes were like the samples when they went in. On the same day the wheat was taken into Bai> ber’s store.

According to the findings of the referee, upon the delivery of the wheat in such store, receipts therefor, in the name of the plaintiffs, by Barber, were indorsed by the former, with an order to deliver the same to the defendant, and re*455delivered to Barber, with a request to deliver them to the defendant, to whom he offered to deliver them, but at the request of the latter, because he could not take the wheat .away for some days, he left it with the plaintiffs for the defendant. This was testified to by the plaintiff Dows and by Barber.

According to the same findings of the referee, such wheat being in store was measured by a measurer, who sent his return, according to the custom, to the plaintiffs, as vendors, who, within four days after the sale, indorsed and sent them to the defendant. The latter retained them for five days, and then returned them to the plaintiffs, with notice that he would not take the wheat. The possession, by a vendee, of such a return, so indorsed by a vendor, according to the course of business of such trade, enables the former to procure the bill of lading, or a warehouseman’s receipt in his favor. The referee therefore found, perhaps as matter of law, that such indorsement and delivery of the return, was evidence of the defendants’ title to the wheat, and right to its possession. The facts in regard to the delivery of the return and its effect, were testified to by the plaintiff Dows and by Barber, and were, undoubtedly, sufficient evidence of acceptance by the defendant. *(Outwater*v. *Dodge,*6 *Wend.*402. *Spencer*v. *Hale,*30 *Verm. Rep.*314. *Morton*v. *Tibbett,*15 *Ad. & El. N. S.*428. *Bushell*v. *Wheeler, Id.*441.)

Mr. Barber further testified that the defendant told him “to take in the wheat, screen and blow it, and see that it was like the two samples, that were in the.two boxes that were handed” to him at the time. And that he' subsequently compared the bulk with the samples. This, undoubtedly, was a recognition of him by the defendant as his agent. '

Upon such evidence, the referee found the sale and delivery to the defendant of the wheat in question. The testimony of Barber, and the retention by the defendant of the measurer’s returns for five days, without objection, corrobo*456rated the statement of the plaintiff Dows. • Against this was opposed only the denial of the defendant. Even he, however, admitted the purchase, but with .the proviso of only receiving it at the end of ten days, and with an agreement. to pay half storage. After seeing the wheat, and receiving the bills and returns, he sent an official measurer to examine the wheat, and then wrote a letter refusing to receive it, because “not according to the quality represented.”

Under these circumstances, and with such a conflict of evidence, the findings of the referee, as to the delivery of the wheat, must be considered as final, *(Osborn*v. *Marquand,*1 *Sandf.*457; *Mann*v. *Whitbeck,*17 *Barb.*388; *Heritage*v. *Hall,*33 *id.*347,) and, therefore, the contract was not governed by the statute of frauds. The only two facts militating against this conclusion were the entry of the wheat in the warehouse keeper’s books, as received from the plaintiffs, and his receipt to the same effect, and the re-sale of the wheat by the plaintiffs. The first is fully explained by the custom of the business, the indorsement of such receipt to the defendant, and his retaining the same. The second may have been some evidence of the sale never having taken place, but the referee disposed of its effect as such with the other evidence, and it could not have disproved both the sale and its recission.

The subsequent re-sale of the wheat by the plaintiffs was expi’essly declared by them, in their notice to the defendant, not to be a rescission, but to be a sale on account of the defendant. Whether they are liable or not for a conversion of it, in resuming possession of it and selling it, could not be tided in this action. The amount recovered is less than the price of the wheat.

The judgment appealed from should therefoz’e be affirmed, with costs.

Garvín, J. concurred.

Monell, J.

I concur in the opinion of the1 Chief Justice, that the evidence of delivezy and acceptance of the wheat, *457was sufficient to bring the case within the exception contained in the statute relative to fraudulent contracts for the sale of goods, &c. and that the judgment should therefore be affirmed. But I do not think it was necessary to examine that question upon this appeal. It nowhere appears that the objection was taken on the trial that the contract of sale was void. In the motion for a nonsuit no ground, therefore, was stated, and it does not seem that the attention of the plaintiffs, or of the referee, was at any time directed to any such objection. It is too late to take the objection for the first time now.