¶1The opinion of the court was delivered by
¶2This is a writ of error brought to reverse a judgment rendered by the county court in favor of Dole against Carpenter on the report of an auditor in an action of book account. The question is whether Carpenter actually received a quantity of potatoes, amounting to 465 bushels, which were left in the field, as stated in the report. It is admitted by the counsel for the defendant in error, that there must have been a delivery of these potatoes by Dole to Carpenter, or that a recovery therefor could not be had, and this admission obviates the necessity of our adverting to the questions of law, which have been argued, and, indeed, there is no doubt in regard to the law. Unless this was an executed and perfected contract and sale, and nothing more was required, on the part of Dole, to vest the property in Carpenter, the action on book could not have been supported. The contract, made in the spring of 1838, for the sale of the potatoes, could not have been enforced while it remained executory, both for want of mutuality, andas coming within the prohibition in the statute of frauds.
¶3The auditor finds that Carpenter is indebted for 465 bushels of potatoes which were left in the field, and charges him for that quantity. This implies that he found a sale and delivery of that quantity. If the facts found by him are not inconsistent with the fact that there was a sale, delivery and measurement of the potatoes charged, the judgment cannot be reversed.
¶4It appears, that the contract was made in the spring of 1838, by which Carpenter agreed to purchase of Dole all the potatoes Dole should raise that season, except what he *581should want for his own use ; that, in the fall, the potatoes were dug, that Carpenter drew them away from time to time until the first of December, when he ceased drawing. And it appears that he actually drew away between eight and nine hundred bushels. After drawing this quantity, neither party were at liberty to refuse to perform the contract without being liable in damages therefor. Dole could not sell them to any one else, nor could Carpenter refuse to take them. It is not found that any thing took place that fall, showing that either had refused to carry the contract of the spring before into effect, or gave any notice of an intention so to do to the other. Indeed, the only objections taken before the auditor were that Dole had not delivered them, that Carpenter had not exercised any acts of ownership over them, and that Dole had not taken ordinary care of them, which seems to imply that Carpenter had some interest in the potatoes left in the field. Whether Carpenter had ever exercised any acts of ownership over them, was of no consequence, if they were delivered in pursuance of the contract, at the appointed place, according to the decision in the case of Blish v. Granger, 6 Vt. R. 340. The auditor had, in effect, found that the potatoes were dug and laid in heaps for Carpenter, agreeably to the terms of the contract; that a large part of them were carried away by him, and the remainder, consisting of 465 bushels, were left for him at the place appointed, and from these facts, he was warranted in finding a sale, and delivery by Dole to Carpenter of that quantity, and there are no facts inconsistent with such sale contained in the report.
¶5The judgment of the county court is therefore affirmed.