Jackson v. . Tupper

Andrews, J. It is conceded that the oral contract of I'ebriv ary 28, 1880, for the sale and storage of the ice was when made, void under the statute of frauds. It must also be conceded under the decisions in this State, that it was'not validated *519 by the payment made in May, 1880. By our statute, payment operates to take an oral contract for the sale of goods for the price of $50 or more out of the statute, only when it is made at the time of the contract. (2 R. S. 136, § 3.) The decisions have construed this provision of the statute with great strictness. (Hunter v. Wetsell, 57 N. Y. 375; S. C., 84 id. 549; Allis v. Read, 45 id. 142.) It is in substance held that payment subsequently made, although conforming to the oral agreement, is insufficient of itself to make the prior oral agreement valid. There must be enough in addition to the act of payment to show, that the terms of the prior oral contract were then in the minds of the parties, and were reaffirmed by them, and this being shown, a cause of action arises, not on the prior oral contract but on the new contract made at the time of the payment. The plaintiffs did not bring their case within this principle. There was no restatement of the terms of the prior oral agreement when the payment of May 1,1880, was made, and no express recognition thereof, nor was the payment made for the avowed purpose of binding the prior bargain. It is expressly found that nothing was said at the time by either party about the contract of February 28, 1880, or its terms. But a prior void* contract may be validated by a subsequent receipt and acceptance by the buyer, pursuant thereto, of the goods, or part of them, which are the subject of the contract. (2 R. S. 136, § 3; McKnight v. Dunlop, 5 N. Y. 537.) Where this has been done the cause of action arises on the original oral agreement authenticated by the act of acceptance. There is no statute difficulty, as in the case of a subsequent payment, because the statute does not, as in that case, require that the acceptance must be at the time of the making of the oral agreement. It was found in this case that after the oral agreement of February 28, 1880, was made, “ the said ice was received and accepted by the plaintiffs.” It is impossible to construe the finding, except as referring to the ice which was the subject of the oral agreement of that date, and as referring to an acceptance thereunder. This relieved the contract from the ban of the statute. Ro question is presented as to the right of the *520 plaintiffs to the'judgment recovered, assuming that the contract of February 28, 1880, was validated. The judgment should .be affirmed. All concur. Judgment affirmed.