majority">Devens, J.

The only inquiries presented are whether there was sufficient evidence of a contract of sale between the parties, and of a delivery and acceptance of the goods under the contract, to go to the jury, the instructions in other respects not having been excepted to.

The plaintiffs, in order to prove an executory contract previous to the delivery, relied solely upon a conversation between Grew *233one of the plaintiffs, and the defendant Knowles. Accepting the statement of Grew, which is the one most favorable to the plaintiffs, there was a proposition on the part of the plaintiffs to sell on certain terms, and on that of the defendants to buy on certain other terms, the distinct point of difference being as to whether the credit should begin to run on December 15 or December 31* Knowles offered to take the goods if the bill was made on six months from December 31, Grew having previously offered the goods at six months from December 15. Grew replied “that he could not do this, on which Knowles said he could do no better.” No evidence was offered of other language, conduct or gestures controlling this, and certainly no inference that a contract of sale was concluded was authorized by it.

Nor is there shown a subsequent acceptance of the goods, with knowledge of the terms insisted on by the plaintiffs, from which an assent to those terms might be inferred which would constitute a contract. Notwithstanding the defendants had declined to take the goods on the terms proposed by the plaintiffs, the goods were sent to the defendants’ warehouse on November 8, 1872, and receipted for there by a boy. A bill upon those terms was sent with the goods, but there was no evidence that it was received by either of the defendants, any person authorized to contract for them, or even by the boy who receipted for the goods. This evidence is insufficient to establish the contract claimed by the plaintiffs ; and its deficiency is not supplied by proof that two of the cases were examined by the defendants’ examiner, that they were in the store where they might have been seen by the defendants, and that one of the defendants did not remember whether these goods were or were not included in the claim made by them upon the insurance companies, the defendants’ store with its contents being destroyed in the great fire on the night of November 9, 1872.

Whether, if an executory contract of sale had been proved, there was sufficient evidence of acceptance of the goods to have taken it out of the operation of the statute of frauds, could not now be profitably discussed, as the facts may be differently presented at a subsequent trial. Exceptions sustained.

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