Mason, J.,
delivered the opinion of this court.
This is an action of assumpsit, instituted by the appellees [16]*16against the appellant, to recover the balance upon certain sales alleged to have been made by the formerj as factors, on account of the latter, the controversy involving the sum of one hundred and twenty-two dollars.
The first question which is raised in the record, relates to so much of the evidence of Goodwin, which seeks to introduce the blotter of the store, containing the original entry of one of the plaintiffs, at the time the alleged transaction with the defendant took place. This evidence was objected to by the defendant, “as proof of sale made.” But the “plaintiff stated that they did not offer the entry for any such purpose, but onlA) to be connected with other proof thereafter to be offered, of a bill of the goods charged having been asked for by’ defendant and sent him” The record further shows, that for this latter purpose alone the evidence was admitted.
It was competent, we think, for the witness to refer to the blotter as an item of evidence in the cause, to show that he had sent a bill copied therefrom to the defendant, and to' ascertain by referring thereto,- of what the bill consisted. This testimony however would only be admissible' for the' purpose of showing what articles were embraced in the bill of parcels, after the proper foundation had been laid for the introduction of the secondary evidence, of the contents of the said bill of parcels; and that foundation would have been a notice duly served upon the defendant to produce the original paper, and which notice had been disregarded.
In this instance', as the point is presented by the record, we think the book was properly admitted in evidence for the specific purpose for which it was offered. The ass'urance that this evidence would be followed ' up by proof of other circumstances and facts material and competent, with which it would have an important connection, rendered its admissioii propeiv If however it should turn out that this assurance was not fulfilled, it would be the duty of the court, in a subsequent stage of the trial, upon an application by counsel, to direct the jury to disregard or reject it. The entries in the blotter were made, it appears, by one of the plaintiffs [17]*17himself, and therefore were clearly not evidence, per se in their favor. They could only have become so, as we have shown, by being connected collaterally with other facts and circumstances. In this case we think, as wé shall presently show, the plaintiffs did not make good their plédge, inasmuch as they did not show that a legal notice had been given in order to lay the foundation for the introduction of the secondary evidence. This leads us to the consideration of the second question presented by the record.
In the progress of the trial, with the view óf establishing the original contract óf sale, out of which the present controversy arises, the plaintiffs offered to prove aliunde, the contents of a written paper, being the bill of parcels of the goods. To authorise the introduction of this evidence, the plaintiffs, while the trial was in progress, served a notice upon the defendant in court, to produce the original paper, which the defendants’ counsel, after having examined his papers declined to produce, and hence the attempt of the plaintiffs to give secondary evidence of its contents. Was this notice sufficient under the circumstances, to warrant the introduction of the secondary evidence, is the point to be determined. Notice given at the bar, during the progress of the trial to produce a paper is not sufficient, unless it appears satisfactorily, that the paper is in court at the time, and in possession of the party upon whom the demand is made, or if elsewhere, that it would be of easy access. In this case it does not affirmatively and sufficiently appear in the record, that the paper was in coutt and in the possession of the defendants, or of easy access when the demand was made. It is true he declined to produce it, but it might as well have been that he so declined, from inability to produce it, as from an unwillingness to do so. The secondary evidence of this paper therefore was improperly admitted, and for that reason we reverse the ruling of the court upon this point.
From what we have said it follows, that the notice to produce the other paper referred to in the record, and which constitutes the third exception, was sufficient; the same [18]*18appearing to have been in court, and in the possession of the defendant -when the demand for its production was made.
The object of the plaintiffs, in this case, was to show such a sale as would be operative and valid under the statute of frauds, and in order to do this, evidence was proposed to be offered, that there was either a memorandum in writing signed by the parties witnessing the contract, or that there was such a delivery of the goods, either actual or constructive, as was sufficient to gratify the requirements of the statute.
Upon the whole evidence three prayers were offered by the defendant, all of which were rejected by the court below. The first, asked the court to say that “there was no evidence' of a sale and delivery within the provisions of the 17th section of the statute of frauds.” This- prayer was properly-rejected. Without expressing any opinion in regard to the weight of testimony in the cause, we do not feel at liberty to say there was none tending to support such a proposition. The letter of the defendant in regard to this transaction,- „ though not a sufficient writing of itself to witness the contract, might still well have- been a circumstance, in connection with-' other facts, which might tend to establish the contract. The-same may be said of the conversation of the defendant with' the witness Grofflin, and of other circumstances proved in* the progress of the trial.
In regard to the proof of a delivery of the goods in order" to gratify the statute, it must be conceded that an actual- of manual delivery is not in all cases necessary. Upon this subject the law is well settled and clearly defined, and may be thus stated: where the goods are ponderous and incapable of being handed over from one to another, and where the buyer so far accepts them, as to treat them as his own, exercising acts of ownership over them, from which possession as owner may be inferred; — or where the delivery is symbolical, such as the delivery of the key of the warehouse in which the goods are lodged ; — or where actual delivery is impracticable, and can only be made by such symbolical means as the circumstances of the case will allow, as in the case of [19]*19a ship or cargo at sea, See., actual or manual delivery is not necessary. Franklin & Armfield, vs. Long, 7 Gill & Johns., 407.
While delivery is a fact to be found by the jury, constructive delivery is a mixed question of law and fact, and the circumstances or facts necessary to constitute such a delivery must be found by the jury, as in the case of actual delivery.
We think there was evidence adduced upon the trial, which should properly have been submitted to the jury upon the question of delivery, and hence the additional error of the first prayer in assuming there was none.
The second prayer we think was .improperly rejected.
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Mason, J.,
delivered the opinion of this court.
This is an action of assumpsit, instituted by the appellees [16]*16against the appellant, to recover the balance upon certain sales alleged to have been made by the formerj as factors, on account of the latter, the controversy involving the sum of one hundred and twenty-two dollars.
The first question which is raised in the record, relates to so much of the evidence of Goodwin, which seeks to introduce the blotter of the store, containing the original entry of one of the plaintiffs, at the time the alleged transaction with the defendant took place. This evidence was objected to by the defendant, “as proof of sale made.” But the “plaintiff stated that they did not offer the entry for any such purpose, but onlA) to be connected with other proof thereafter to be offered, of a bill of the goods charged having been asked for by’ defendant and sent him” The record further shows, that for this latter purpose alone the evidence was admitted.
It was competent, we think, for the witness to refer to the blotter as an item of evidence in the cause, to show that he had sent a bill copied therefrom to the defendant, and to' ascertain by referring thereto,- of what the bill consisted. This testimony however would only be admissible' for the' purpose of showing what articles were embraced in the bill of parcels, after the proper foundation had been laid for the introduction of the secondary evidence, of the contents of the said bill of parcels; and that foundation would have been a notice duly served upon the defendant to produce the original paper, and which notice had been disregarded.
In this instance', as the point is presented by the record, we think the book was properly admitted in evidence for the specific purpose for which it was offered. The ass'urance that this evidence would be followed ' up by proof of other circumstances and facts material and competent, with which it would have an important connection, rendered its admissioii propeiv If however it should turn out that this assurance was not fulfilled, it would be the duty of the court, in a subsequent stage of the trial, upon an application by counsel, to direct the jury to disregard or reject it. The entries in the blotter were made, it appears, by one of the plaintiffs [17]*17himself, and therefore were clearly not evidence, per se in their favor. They could only have become so, as we have shown, by being connected collaterally with other facts and circumstances. In this case we think, as wé shall presently show, the plaintiffs did not make good their plédge, inasmuch as they did not show that a legal notice had been given in order to lay the foundation for the introduction of the secondary evidence. This leads us to the consideration of the second question presented by the record.
In the progress of the trial, with the view óf establishing the original contract óf sale, out of which the present controversy arises, the plaintiffs offered to prove aliunde, the contents of a written paper, being the bill of parcels of the goods. To authorise the introduction of this evidence, the plaintiffs, while the trial was in progress, served a notice upon the defendant in court, to produce the original paper, which the defendants’ counsel, after having examined his papers declined to produce, and hence the attempt of the plaintiffs to give secondary evidence of its contents. Was this notice sufficient under the circumstances, to warrant the introduction of the secondary evidence, is the point to be determined. Notice given at the bar, during the progress of the trial to produce a paper is not sufficient, unless it appears satisfactorily, that the paper is in court at the time, and in possession of the party upon whom the demand is made, or if elsewhere, that it would be of easy access. In this case it does not affirmatively and sufficiently appear in the record, that the paper was in coutt and in the possession of the defendants, or of easy access when the demand was made. It is true he declined to produce it, but it might as well have been that he so declined, from inability to produce it, as from an unwillingness to do so. The secondary evidence of this paper therefore was improperly admitted, and for that reason we reverse the ruling of the court upon this point.
From what we have said it follows, that the notice to produce the other paper referred to in the record, and which constitutes the third exception, was sufficient; the same [18]*18appearing to have been in court, and in the possession of the defendant -when the demand for its production was made.
The object of the plaintiffs, in this case, was to show such a sale as would be operative and valid under the statute of frauds, and in order to do this, evidence was proposed to be offered, that there was either a memorandum in writing signed by the parties witnessing the contract, or that there was such a delivery of the goods, either actual or constructive, as was sufficient to gratify the requirements of the statute.
Upon the whole evidence three prayers were offered by the defendant, all of which were rejected by the court below. The first, asked the court to say that “there was no evidence' of a sale and delivery within the provisions of the 17th section of the statute of frauds.” This- prayer was properly-rejected. Without expressing any opinion in regard to the weight of testimony in the cause, we do not feel at liberty to say there was none tending to support such a proposition. The letter of the defendant in regard to this transaction,- „ though not a sufficient writing of itself to witness the contract, might still well have- been a circumstance, in connection with-' other facts, which might tend to establish the contract. The-same may be said of the conversation of the defendant with' the witness Grofflin, and of other circumstances proved in* the progress of the trial.
In regard to the proof of a delivery of the goods in order" to gratify the statute, it must be conceded that an actual- of manual delivery is not in all cases necessary. Upon this subject the law is well settled and clearly defined, and may be thus stated: where the goods are ponderous and incapable of being handed over from one to another, and where the buyer so far accepts them, as to treat them as his own, exercising acts of ownership over them, from which possession as owner may be inferred; — or where the delivery is symbolical, such as the delivery of the key of the warehouse in which the goods are lodged ; — or where actual delivery is impracticable, and can only be made by such symbolical means as the circumstances of the case will allow, as in the case of [19]*19a ship or cargo at sea, See., actual or manual delivery is not necessary. Franklin & Armfield, vs. Long, 7 Gill & Johns., 407.
While delivery is a fact to be found by the jury, constructive delivery is a mixed question of law and fact, and the circumstances or facts necessary to constitute such a delivery must be found by the jury, as in the case of actual delivery.
We think there was evidence adduced upon the trial, which should properly have been submitted to the jury upon the question of delivery, and hence the additional error of the first prayer in assuming there was none.
The second prayer we think was .improperly rejected. It submits nothing to the jury but the simple question of delivery, which is a fact to be found by the jury. When however the delivery is not actual, but symbolical or constructive, then, as we have already said, it is a mixed question of law and fact, and either party has the right to ask instructions of the court as to the legal effect of any particular circumstance which may be offered to the jury, and from which the delivery is to he deduced.
The third prayer was properly rejected, because it assumes that in all cases like the present, an actual delivery is necessary to make the sale a valid one, where it is to depend upon delivery alone. We think on the contrary, when from the peculiar character of the goods sold they are not susceptible of an actual or manual delivery, as in this case, a symbolical or constructive delivery will be sufficient.
If this verdict and judgment stood alone upon the evidence in regard to the delivery, we might be disposed not to disturb them, but as it is impossible to know upon what ground the jury based their verdict, whether upon the ground that a written contract had been sufficiently proven, (the evidence in regard to which having been excluded by us,) or whether upon the proof of delivery, we must reverse the judgment. In doing so however we do not wish to be understood as intimating any opinion, as to the sufficiency of the proof to establish a valid contract between these parties. To determine that is the province of the jury.
Judgment reversed and procedendo awarded.