#### Moritz Marcus *et al.*plaintiffs and appellants, *vs.*Leon Barnard, defendant and respondent.

1. Under the 3d section of the statute of frauds, (2 *M. S.*150,) a note or memorandum of the sale of goods of the value of $50 or more, signed by the seller only, is not binding upon him, where not signed by the buyers, and no part of

• the property is accepted or received, and no part of the purchase money is paid. (Decision in *Justice*v. *Jang,*2 *Mob. M.*333, applied and sanctioned.)

2. The intention of the statute was, that if the contract was in writing, *both*parties should subscribe it p if no contract in writing, that one party should deliver, and the other not only accept, but receive, a part of the property sold; or that the buyer should pay, and the seller receive, some part of the purchase money, to make the contract effectual between the parties.

(Before Robertson, Ch. X, and Garvin, X)

Heard April 9,1866;

decided June 30,1866.

This is an appeal from a judgment entered upon the report of a referee. On the 13th of May, 1864, the defendant signed *220and delivered to the plaintiffs a memorandum in writing, as follows: *“*Sold Messrs. Marcus & Co. fifty hhls. whiting, (ground,) to he delivered in June, at 2 c. a lb. cask ; barrels 20 c. cash. May 13, 1864. L. Barnard.” Another memorandum was made on the 14th May, for the same quantity of whiting, at l-¡- cent per lb. signed by the defendant. It appeared, upon the trial, that the defendant wholly neglected to perform the agreement; that the plaintiffs were ready and willing to receive the whiting, and pay for it, during the whole of the month of J une ; that the whiting embraced in the first memorandum of sale increased in value, and was worth one hundred and seventy-five dollars more on the 30th of June, 1864, when it was to be delivered, than the price fixed in the memorandum of sale; that the quantity of whiting embraced in the other memorandum of sale was not delivered, although the plaintiffs were ready and willing to pay for and receive it during the whole month of June, and it had increased in value, and was worth one hundred and ninety-seven dollars more on the 30th of June, 1864, when the same was to be delivered according to the memorandum, than the price fixed in the memorandum of sale. Neither of these memoranda were signed by the plaintiffs, nor was any portion of the property described in them, or either of them, delivered to the plaintiffs, nor was any money paid by the plaintiffs to the defendant, and received by him.

By the Court,

Garvin, J.

As the buyers did not sign either contract, this case presents the question whether, under the third section of the statute of frauds, (2 *R. S.*140,) such a note, or memorandum, as that signed by the defendant, is binding upon the seller, when not signed by the buyers, and no part of the property is accepted or received, and no part of the purchase money is paid. By the terms of the statute, the buyers cannot be charged thereby, for they have not subscribed it, and without them there is no second party to the contract. How, then, can it be said the seller is liable ? There is no consideration for his promise; it is a mere unaccepted proposal, *221under the statute, which is not binding upon either party, and cannot be enforced. It is said by Judge Brown, in *Brabin*v. *Hyde,*(32 *N. Y. Rep.*519,) “ The sale will not be effected without the occurrence of the three acts mentioned in the-statute. These acts are not to be performed by one party only; they are to be concurred in by both parties to the contract. If the memorandum in writing is relied upon, it must be signed by “ *the parties*not merely “ the party to be charged thereby." The intention of the statute was, that if the contract was in writing, both parties should subscribe it. If there was no contract in writing, that one party should deliver, and the other not only agree to *accept,*but actually receive, a part of the property sold; or that the buyer should pay, and the seller receive, some part of the purchase money, in order to make the contract effectual between the parties. This precise question has been decided in this court, in the case of *Justice*v. *Lang et al.*(2 *Rob.*333,) where it was held that unless the contract was signed by both parties, it was void. The judgment in this case must, therefore, be affirmed, with costs. -