Henry L. Wade, Administrator, etc., Respondent, v. The New York and Oswego Midland Railroad Company, Appellant

Henry L. Wade, Administrator, etc., Respondent, v. The New York and Oswego Midland Railroad Company, Appellant. (Submitted January 28, 1873; decided February 4, 1873.) This was an action to recover for a quantity of ties alleged to have been sold by plaintiff’s intestate to defendant. The contract for the ties was by parol, and exceeded fifty dollars in amount. Nothing was paid, and no part of the ties delivered at the time. Plaintiff claimed, that the case was taken out of the operation of the statute of frauds by a subsequent delivery and acceptance of a portion of the ties. The proof showed that a portion of the ties were placed upon defendant’s land, and a portion upon land adjoining; that defendant’s agent for the purchase and inspection of ties, for the pm’pose of clearing out a road, moved a few of the latter upon defendant’s land. Defendant’s counsel asked the court to charge that this removal was not such an acceptance or part delivery as took the ease out of the statute, which the court declined to do. Evidence was also given tending to show that a small part of the ties were taken by the servants of defendant and used upon the road. No evidence was given that these persons had any authority to make contracts and to accept ties upon contract; on the contrary, it appeared that they were directed to take only such ties as had been inspected and marked. Held, that the court erred in refusing to charge as 'requested, as the evidence referred to had no' tendency to show acceptance or delivery. That the taking of the ties by defendant’s employes was no evidence of an acceptance under the contract, and while it might bind the company to pay for the ties taken, did not bind it upon.the contract. Dwight H. Gla/rke for the appellant. Henry R. Mygatt for the respondent. [MAJORITY — Gboveb, J.,] Gboveb, J., reads for reversal and new trial. . All concur. Judgment reversed.