¶1 (dissenting). I respectfully dissent from the majority opinion, because the facts — as I see them — do not bring this case within the rule of “partial delivery,” as those words are used in cases involving the statute of frauds. To constitute partial delivery, either the actual or the legal possession of the property — claimed to be delivered — must have passed from the seller to the buyer. The evidence in this case shows the entire absence of such essential. Minton had. 24 bales of low-grade cotton; and here is McDaniel’s testimony:
“ . -. . and I told him, ‘I think I can sell the cotton for you in with my cotton. ... I can get 18 cents for you.’ . ' . . and we agreed at 18 cents and we drove out to his place of business ... to get the samples, and I took the cotton samples with me, and I sold it (cotton), and I came back and gave him shipping instructions where to ship it. ... I said, ‘You can ship it to Little Rock or yon can ship it to Hope.’ . . . and I told him to take it to Hope and draw on me with the compress receipts attached here at Arkadelphia . . . and the draft never did come in.”
¶2 McDaniel’s testimony is- the only evidence in the record even claimed to look towards a partial delivery of the cotton. Minton delivered' some cotton to the compress at Hope, but held the compress receipts, and never attached those receipts to a draft. I consider the negotiable compress receipts to be the best evidence of the ownership of the cotton after it was delivered to the compress, and until the negotiable compress receipts passed out of the control of Minton, there was no partial delivery. The mere delivery of cotton to the compress was no delivery to McDaniel, because the compress receipts were never delivered. The Uniform "Warehouse Receipts Act (§ 14413, et seq., Pope’s Digest) makes the negotiable warehouse receipts the indicia of title.
¶3 Furthermore, McDaniel practically conceded that he never received the cotton, because several months after his original conversation with Minton, and after McDaniel began to doubt whether Minton would ever deliver any of the cotton to him, McDaniel testified that he went back to Minton in an effort to get the cotton. Here is McDaniel’s testimony:
“ . . . I said, ‘to get it over with, and to treat you right about it, you have got a few bales in the warehouse, and if you will let me have those, I will take the rest here on the platform and absorb the loss to clear it up, and we will either weigh it on your scales or get someone else to weigh it. ’ In other words, I was taking all the loss in weights that he might have in order to get it closed, and he said, ‘I will see about it,’ and I waited a day or two longer and I went by and he told me frankly that he wasn’t going to deliver the cotton. (Italics our own.) This testimony is an absolute admission by McDaniel that he never had delivery of the cotton. He said of the compress receipts: “ . . . if you will let me have those.” That statement shows that he never received the receipts or any of the cotton.
¶4 On McDaniel’s testimony — and there was no other in the record on this point — there was no evidence of a partial delivery; and so I think the statute of frauds was a valid defense. On the basis of “living up to his word,” Minton should have delivered the cotton. But the statute of frauds is a legal defense; and with that defense pleaded by Minton, as it was, I am of the opinion that the evidence did not show any partial delivery so as to take the case out of the statute of frauds.
¶5 It is not claimed — and it could not be sustained, even if claimed — that the delivery of the samples constituted a symbolic delivery of the cotton. The rule of symbolic delivery does not extend to cotton samples. See 27 C. J. 250; Smith v. Evans, 36 S. C. 69, 15 S. E. 344; and annotation in 4 A. L. R. 914. Neither do the facts in the case at bar allow the appellee to rely on the case of McKinney & Sons v. Ragland, 163 Ark. 96, 259 S. W. 17.
¶6 For the reasons stated, I respectfully dissent from the majority.