¶1The counsel for the defendant have expended considerable labor, and produced many authorities, to show that upon the report of the referee it does not appear that there was any such delivery of the property bargained for, as was necessary to vest the title of the whole number of sheep in the plaintiff, so as to enable him to sue for and recover the value of the sheep which the defendant refused to deliver.
¶2*641But that' is not tlie question presented by the report. The question for this court to determine is, whether there was such an acceptance, and receiving, of a part of the property purchased, by the purchaser, or such a part payment of the purchase money, as would take the case out of the statute of frauds, (the contract not being in writing,) so as to make it a binding executory contract, and render the party liable in damages who should refuse to perform it.
¶3It appears from the report that of the thirty-one sheep contracted for, the defendant delivered and the plaintiff received twenty upon the contract and paid for them the contract price, at the time they were delivered. The ■ defendant refused to deliver the remaining eleven sheep, and this action is brought by the plaint'ff not to recover the value of the eleven sheep, but the damages he sustained in consequence of the defendant’s refusal to deliver them.
¶4Here was an acceptance of a part of the property purchased, upon the contract, and a payment of part of the purchase money, either of which was sufficient to take the contract out of the statute, and make it binding upon the parties as an executory contract. It would be difficult to state a case that would be a more perfect example of what is requisite in the way of part performance of a contract of this character, to take it out of the statute, than the present case.
¶5Judgment affirmed.