majority">

The opinion of the majority of the Court, Siiepeey' J. dissenting, was drawn up by

W hitman C. J.

What shall be considered as constituí*92ing a sale of chattels, is not unfrequently attended with difficulty. Sales are sometimes complete as between the parties, and not so as between them and other persons. Again, sales may be good, but for the intervention of the statute of frauds, and not good where the statute applies; as where the goods sold are of the value of thirty dollars or more. The sale in this case was of a bureau, the agreed value of which was twenty dollars, and, therefore, not within the statute. The difference between cases coming within the statute, and those not affected by it, consists in certain formalities required to legalize them, in the one case, which may be dispensed with in the other. In cases coming within the statute, the forms being observed, the principles of decision are the same as in those not coming within it. We must look to the common law in either case for those principles. To constitute .a sale there must be a delivery of the article sold, either actual or constructive, to entitle the vendor to recover the price of it. A mere contract of sale is not sufficient.

The bureau, charged as sold in this case, was selected by the defendant, and the price agreed upon. She directed it to be set apart, and to be kept and marked for her; and promised to call and pay for it, and take it away in a few days; accordingly it was marked, “ sold S. Parker $20,00,” in her presence, and within her view; and had ever since been kept for her. The question is, was this a sale, such as to authorize the maintenance of this action for the price? It is laid down in Com. Dig. Biens, D. 3, that, in all sales of goods in possession, the property is changed immediately upon the making of the contract; and Perk. <§> 22, adds, that such is the case, although the actual possession is retained by the vendee, until the fulfilment of the stipulated terms; and that if a man sell his horse for money, though he may keep him till he is paid, yet the property in the horse is in the bargainor or buyer ; so that if he tenders the price to the seller, and he refuses it, he may take the horse, or have an action for the detainment. In the 2 Black. Com. 448, it is said, “ as soon as the bargain is struck, the property of the goods is transferred to the vendee, *93and that of the price to the vendor, but the vendee cannot take the goods till he tenders the price agreed on.” In the 1 Camp. 233, Lord Ellenborough is reported to have said, that the defendant, having written her name upon a piece of linen with a view to denote that she had purchased it, and to be appropriated to’her use, the delivery was sufficient to authorize the maintenance of an action for the price, she having after-wards refused to take it away. And in Anderson v. Scott, 1 Camp. 235, where the plaintiff bargained for a number of casks of wine, whereupon the spiles or pegs, by which the wine was tasted, were cut off, and the name of the purchaser marked thereon, in the presence of the parties, by the defendant’s clerk, it was holden to amount to a delivery. In Elmore v. Stone, 1 Taunt. 458, it appeared, 'that a pair of horses was offered for a certain price, and the oiler was accepted, with a request that the seller would keep them for the buyer, he having no conveniencies for keeping them; whereupon the seller removed them to a different stable for the purpose, and thereby incurred some additional expense, and the sale was held to be complete. This case, however, has been doubted, and considered a.s going to the exlremest verge of the law, but has not been expressly overruled. It is also laid down in the page of the commentaries before cited, that the goods sold, as stated in the citation, are at the risk of the vendee till paid for and taken away; and if destroyed by casualty in the meantime that the vendor may recover the price. And in Butterfield v. Baker, 5 Pick. 522, it is said, the distinction is, that, where a contract of sale is complete, it gives a right as between the parties, without, a delivery, and the vendee may maintain trover for the article, or the vendor assumpsit for the price.

In the statement of facts, in this ease, it does not explicitly appear, what length of time had elapsed, after the making of the bargain before the suit was commenced; nor whether the defendant was called upon to pay for, and take a.way the bureau; but as the Court, by the statement, is expressly authorized to draw inferences as a jury might, we must presume, as no question appears to have been made at the trial, and as *94none is suggested in argument here, that she had not ample notice and opportunity, before the commencement of the auction, to have paid for and to have removed the bureau, that what was proper to have been done in this particular was done. It is not uncommon in the course of trials before the jury, for facts necessary to support the issues to be considered as admitted, when no question is made about them.

On the whole, we think that what took place,'when the bureau was selected, brings this case within the principles of the authorities cited; and that the delivery was such as to make the sale complete : and that the defendant, upon request, could pot have refused to pay for it, and- take it away, without rendering herself liable as for goods sold and delivered.

Certain decisions, however, are supposed to be in conflict with these views. Lord Holt, in Langfort v. Tyler, 1 Salk. 113, is reported to have said, “if the vendee does not come and pay and take the goods the vendor ought to go and request him; and then, if he does not come and pay for and take the goods in convenient time, the agreement is dissolved; and he is at liberty to sell them to any other person.” He does not say that the vendor may not elect to hold the vendee accountable for the price, as and for goods sold and delivered ; and clearly, it would seem that he could not so hold, as it would be inconsistent with the opinions in the cases before cited, povided there were a request and refusal to take the goods away. And it may be noted, that there it is not stated, that any act amounting to a delivery is noticed as having occurred. It was a case, so far as appears, of a contract of sale merely.

In Goodall v. Skelton, 2 Hen. B1. 316, the vendor expressly made it a condition, before he would part with his goods, that they should be paid for. Hence, of course, there was no delivery ; nor any thing more than an agreement to sell upon condition. Nor in Simmons v. Swift, 5 B. & C. 857, was there any delivery. It was a case of a contract of sale. The goods had not been weighed even, without which the contract of sale was not complete. The opinions expressed by the *95learned justices in that case do not apply to a ease like the one here. They might well say in that case, that an action for goods sold and delivered would not lie.

In Hinde v. Whitehouse & al. 7 East, 558, which was assumpsit to recover for the price of sugars sold at auction, and which had been burnt after the sale, and before delivery of any part, except a sample of each hhd., the plaintiff was allowed to recover. The delivery of the samples, as part of the whole, was held sufficient to take the case out of the statute of frauds; but for which, according to the authorities, the vendor in such case might have recovered, without an actual delivery. Torling v. Baxter, 6 B. & C. 360.

In the case of Smith v. Chance, 2 B. & A. 753, it seems to have been held, that, before a recovery,- as goods sold and delivered can be had, there must be proof of delivery of the goods, or of their having been placed in the power of the vendee. In the case at bar the article sold had been set apart for the defendant by her request, and marked with her name, in her presence ; and no stipulation was made that she should not take it away till paid for. It would seem that she might have taken it away at pleasure.

As agreed by the parties judgment must be entered for the plaintiff for if,) 20, and interest thereon from the date of the writ.

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