The New York herald., 1876-08-22
UNITED STATES SUPREME COURT
DECISION.

DECISION.
SALE AND PUECHAsE--THEIR CANNOT BE ONE
WITHOUT THE oTHER-wnERE ONE Is SHOWN
BOTH ARE ESTABLISHED.
WASHINGTON, D. c., August 21. 1876
No. 2o9 Benjamin I. Butler, plaintiff In error. VS..
Alexander A. Thomson and william Thomson-In error
to tho Circuit Court for the Southern District OF New
York-The plaintiff alleged that on the 1lth day Of
july 1867, he bargained aud sold to tho defendants
quantity OF iron, thereafter to arrive, at prices named,
that The defendants agreed accept the and
pay the purchase money therefor; that the arrived
in due time, rendered tho defend
ants, who refused to receive and pay for
the same, aud that tho plaintiff afterward sold
the at loss OF S6.5s1, which sum he requires
tie defendants to make gooa 10 hm. The defendants
interposcd general DENIAL Upon tho trial the case
came down 10 this:-ihe pa ntin employed certain
brokers In the city OF New York 10 make sale for HIM
of the expected IRON. The brokers made sale of the
same TO the DEFENDANTS at twelve and thrce-quarters
cents per pound in gold, cash.
The following memorandum OF sale was mado by the
brokers, VIZ -
NEW YORK. July 10, 1867
Sold for Messrs Butler Co. Boston. to Mcssrs y. 4.
sh CT on To- arrive at New YORK AZ twelve and three"
quarters per pound sod cash. actual are Iron due
WHITE l. HAZARD, Brokers'
The defendants contend that under tho of
frauds OF The State OF New York this contract
obligatory upon them. Tho Judge before whom the
case was tried at the circuit concurrcd in this view
this Judgment that the present rcview taken The
provision OF the statute OF New York. upon which the
question arises &, X. s., 1885, sec. 81 is in these
words ds:-"Every contract Tor the sale OF any goods
chatte!s or things IN action Tor tho price OF $50
moro, Shall be void, unless IN note memoran-
dun OF such contract bo made in writ
ing and be subscribed by the parties to be
charged thereby, or (2) unless the buyer shall
accept and receive part OF such goods, tho
evidences, some OF them, OF such things in action
or 81 unless tho buyer shall at the time pay some
part of the purchase money! The eighth section OF
the same title provides that ''evcry instrument
qured by any OF the PROVISIONS o. this tie bc SUBJ
agent o: such party" There is precnce tnat any
OF the goods accepted and received, that any
part OF the purchase money was paid. The question
upon tho nrst branch OF the statule-that
a memorandum OF the contra shall he made in writ
ing ana be subscribed by the parties be charged
thereby. The defendants do not contend that there
is not sufficient subscription 10 the contract.
White x Hazard, who signed the ument, are
proved to have been the authorized agents o the plain
TN sell and OF the defendants buy and their
nature II Is conceded, is the signature both OF the
defendants and of the plaintin The objection is to
the sullciency OF The contract ITSELF The written
memorandum rccltcs that Butler 4 Co. had sold the
iron 10 the defendants at price named but it is said
there is no recital that the defendants had bought the
iron. There is contract OF sale, 1t argued,
bus not contract Of purchase As
dcrstand the argument, it is an attack upon
compliance with tho statute Of fraud, hut that
II Is void upon common law principles.
The evidence required by the statute TO avoid fraud
and pcrjurics To wi written agreement, is present
II is held that there be a sale without a pur-
chase, nor seller unless there is likewise pur-
chaser. A sale is meeting ol Two minds by which
title passes from one and vests IN another A man
not sell chatcI and st continue to he the
o! IT, When, therefore, the parties mutually declare
writing that Butter \ Co. have sold certain amovnt
OF to Thomson n Co. at price named there in-
cudcd therein certificate and declaration that Thon-
& Co have bought tho iron ut that price. Re-
versed. Mr.. Justice Hunt delivered the opinion