<p>This was an action of assumpsit on account annexed to the writ, in which the plaintiff charged the defendant with a quantity of mill logs. The plaintiff offered evidence tending to prove that in April or May, 1834, he, through his agent, John Barter, jr., contracted to sell and did sell to the defendant the mill logs as charged at 10s Qd per M. estimated according to the survey of one Keating, making 188 M ; that the bargain was made at a place about one mile distant from where the logs were deposited, and in the forenoon, and that the defendant at the time of the bargain employed said Barber to haul out a portion of the logs from the river, where they then lay, on to the brow of the defendant’s mill, ■which the said Barber did in the afternoon of the same day.</p> <p>The defendant sawed and used about 50 M. only of said logs and left the remainder where they were at the time of the contract and refused to pay therefor.</p> <p>The defendant’s counsel requested Parris J. who presided at the trial, to instruct the jury, that if they should find that Barber did make an agreement with the defendant to sell him the whole quantity of logs at 10s 6¡i per M. estimated according to the survey of one Keating, making 188 M. as ho testified, that still, if there was at the time and place of making the same, no money paid and no memorandum in writing of said agreement, and no delivery of the logs at the time, or any part thereof, said place of agreement being a mile distant from said logs; that in such case the said agreement would be void by the statute of frauds, and no action could be maintained upon it, notwithstanding a portion of the logs might have been afterwards and on the same day delivered by Barber and received by the defendant.</p> <p>But the Judge charged the jury, that if they found, that the defendant purchased all the logs charged in the plaintiff’s account, and that the logs were all deposited at the same place, and that the defendant, at the time of the purchase employed Barber to haul them out, and he actually did haul out a portion of them on the same day in wriiich the bargain was made, and as soon thereafter as could be conveniently done, and that"they were received and used by the defendant under the contract, that this was such a delivery and acceptance as the law required, and that the defendant would be chargeable for the whole quantity sold.</p> <p>If the instructions were wrong, the verdict, which was for the plaintiff, is to be set aside and a new trial granted.</p> <p>The instruction requested by the counsel of the defendant should have been given, and that actually given was erroneous.</p> <p>The value of the logs was more than thirty dollars. There was no contract in writing, nothing was paid, and there was no delivery. The statute of frauds, ch. 53, <§> 3, of the revised statutes, is a sufficient answer to the plaintiff’s claim.</p> <p>The case finds, that the supposed contract was made in the forenoon, a mile distant from the logs, and that a portion of them were hauled in the afternoon ; and it is said, that this was an acceptance of the whole by the defendant; and that a part was received for the whole. The effect of such rule of law would be, that if a man had a whole cargo of goods, and sold one article, which was afterwards taken away, that he might charge and recover for the whole cargo. So in this case, if the charge of the Judge was right, then the plaintiff might sell a single log, and the defendant might take it away, and then the plaintiff might obtain a witness to prove a contract, and charge the whole thousand. But it was such evidence which the statute was designed to guard against. Hence the title of the act, “ an act,to prevent frauds and perjury.” The plaintiff should at least have furnished proof, that the defendant agreed to accept a part for the whole, before the instructions given would have been authorised.</p> <p>1. If any of the property sold be delivered within a reasonable time it is sufficient. Damon v. Osborn, 1 Pick. 476; 1 Dane, 652; 2 Selw. N. P. 871, and note.</p> <p>2. If such agreement be executed in part, the parties are not permitted to treat it as a nullity ; and acceptance within a reasonable time is sufficient. Davenport v. Mason, 15 Mass. JR. 92; 2 Stark. Ev. 610; Ricker v. Kelly, 1 Greenl. 117; Gale v. Nixon, 6 Cowen, 445.</p> <p>3. Nor is it necessary, that the property should be delivered at the very time of the sale. Vincent v. Germond, 11 Johns. R. 283; Holbrook v. Armstrong, 1 Fairf. 31.</p> <p>4. Actual delivery, in tbe popular sense of tbe word, is not in all cases requisite, but a virtual or symbolical delivery in some cases is equally effectual. Bailey v. Ogden, 3 Johns. 11. 399; Parsons v. Dickinson, 11 Pick. 352.</p>
