As no part of the purchase money was paid by the vendee, the contract above stated was void by the statute of Frauds, (2R.S. 136, § 3, subd. 3) unless the buyer "accepted and received" the whole or a part of the property sold.
The object of the statute was not only to guard against the dishonesty of parties and the perjury of witnesses, but against the misunderstanding and mistakes of honest men. If the contract is reduced to writing, and "subscribed by the parties to be charged thereby," this object is effectually attained. The writing becomes its own interpreter. Where this is omitted but the vendee has paid part of the price, or the vendor has delivered and the buyer has accepted a portion *Page 264 or all of the property, upon the strength of the agreement. These acts not only indicate deliberation and confidence upon the part of the contractors, but they furnished unequivocal evidence of the existence of a contract of some sort between them, although its terms and provisions must after all depend upon the recollection of witnesses.
The case before us is destitute of all such collateral evidence. No acts of the party sought to be charged are proved. We are presented with a naked verbal agreement. The declarations relied upon as evidence, of a delivery and acceptance constitute a part of the contract, and of course are obnoxious to all the evils and every objection against which it was the policy of the law to provide.
The acts of part payment, of delivery and acceptance mentioned in the statute are something over and beyond the agreement of which they are a part performance, and which they assume as already existing. The entire absence of such evidence distinguishes the present case from all those that have been cited by the counsel for the plaintiff in support of this action. (Chaplain vs. Rogers, 1 East, 193; Jewett vs. Warren, 12 Mass. 311; Riddle vs. Varnum, 20 Pick, 280; 10Wend., 391; Kent Com., 4th Ed. 500, 501.) The strong case, from the Pandects of the Column of Granite is not an exception; for it is fairly to be inferred that the consent of the vendor that the purchaser should take possession was subsequent to the sale.
I am aware that there are cases in which it has been adjudged, that where the articles sold are ponderous, a symbolical or constructive delivery will be equivalent in its legal effect to an actual delivery. The delivery of a key of a warehouse in which goods sold are deposited, furnishes an example of this kind. But to aid the plaintiff, an authority must be shown that astipulation in the contract of the sale, for the delivery of the key or other indicia of possession will constitute a delivery and acceptance within the statute. No such case can be found. The entire contract being void by the statute, the stipulation in reference to a constructive delivery would *Page 265 fall with the other provisions. In Philips vs. Bristol, (2B. and C. 511,) the property was sold by an auctioneer and delivered to the purchaser, who after detaining it three or four minutes handed it back saying he was mistaken as to the price. The vendor refused to receive the property, and the jury found that the excuse was false in fact. The verdict was set aside: The Court saying that to satisfy the statute there must be a delivery by the vendor, with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter with the intent of taking possession as owner.
This, I apprehend, is the correct rule and it is obvious, that it can only be satisfied by something done subsequent to the sale unequivocally indicating the mutual intentions of the parties. Mere words are not sufficient. (3 Johns. 421.) Declarations accompanying an act and explanatory of it are undoubtedly admissible evidence, as a part of the res gestae. This is all that is established by the modern authorities. (12 Mass., 301; 1 Dallas, 171; 2 Barn. and Cress. 44; 3 J.R. 421).
In a word the statute of fraudulent conveyances and contracts, pronounced this agreement when made, void, unless the buyer should "accept and receive some part of the goods."
The language is unequivocal and demands the action of both parties, for acceptance implies delivery, and there can be no complete delivery without acceptance. The defendant, however, said nothing and did nothing subsequent to the agreement except through his agent to repudiate the contract. There was consequently no evidence of a delivery.
I think, therefore, the learned Recorder erred in submitting that question to the jury, and that the judgment of the Supreme Court should be reversed.
The Statute of Frauds has been pronounced by high authority, (Kent's Comm. 2 V., 494) to be, in many respects, the most comprehensive, salutary, and important legislative regulation on record, affecting the security of private rights. Its benefits it is believed will be most effectually secured, by *Page 266 rejecting refined distinctions, overlooking the supposed equity of particular cases, and adhering steadily to its language as the best exponent of the intention of the Legislature.
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