Kent, Ch. J.
delivered the opinion of the court. This cause depends upon the decision of these two general questions :
1. Was there a note or memorandum in writing, binding upon the defendants, within the meaning of the statute of frauds ? If not, then,
2. Was there a delivery of the sugars, so as to change the property, and throw the risk of the subsequent loss upon the defendants?
1st. The only memoranda which were made relative to the transaction, were, an entry of the sale of the sugars, made by one of the plaintiffs in their memorandum book, immediately after the alleged sale, and the minute made with the pencil of Huguet, in his pocket memorandum book. The entry of the plaintiffs, made and retained by them, was not binding upon the defendants, because the statute requires the note or memorandum to be signed by the party to be charged. The numerous cases admitting an agreement to be valid within the statute, if signed by one party only, are all of them cases in which the agreement was signed by the party against whom the performance was sought. Some of the cases arose under the 4th, and others under the 17th section of the English statute, but the words are, in this respect, similar, and require the same construction. (2 Cha. Ca. 164. 1 Powell on Contracts, 286. 5 Viner, 527. pl. 17. 1 Vezey, 82. 3 Bro. C. C. 162, 3 Atk. 503. 6 East, 307. 7 Vesey, jun. 265. 9 Vesey, jun. 234. 351. 1 Esp. Cas. 190. Ballow v. Walker, in this court, Jan. Term, 1802. 2 Caines, 120.) It has, however, been said, that there would be a want of [419] mutuality, if the plaintiffs in. this case were bound by their entry, and the defendants should not be. The same difficulty has occurred in other cases, and Lord Redesdale felt it so strongly, that he observed, (Lawrenson v. Butler, 1 Schoales and Lefroy, 20.) that to enforce every agreement signed by one party only, against such party, would be to make the statute really a statute of frauds, and that there was no late case in which one party only was bound by the agreement, where equity had decreed performance, though he admitted the import of the statute to be, that no agreement should be in force, but when signed by the party to be charged. He further intimated, that as no man signed an agreement but under a supposition that the other party was bound, as well as himself, if the other party was not bound, he signed it under a mistake, which might be a ground for relief in equity, Whether the plaintiffs, in the present case, were bound at law by their memorandum, or if bound,whether they might have relief in equity, are questions not before us, and concerning which we are not now to inquire. It is sufficient to say, that the defendants were not bound by any note or memorandum in writing of the contract, unless the same was signed by them, or their authorised agent. Huguet was in this instance their agent to make the purchase, and any memorandum made by him respecting the purchase, would operate as a memorandum made by the defendants. But the memorandum which he made, was too vague and indefinite to be a compliance with the statute. The form of the memorandum cannot be material, but it must state the contract with réasonable certainty, so that the substance of it can be made to appear, and be understood from the writing itself, without having recourse to parol proof. This is the meaning and substance of the statute, and without which, the beneficial ends of it would be entirely defeated. (Prec. in Cha. 560. 3 Atk. 503. 1 Vesey, jun. 333.) The memorandum of Huguet is absolutely unintelligible. It has not the essentials of the contract, or memorandum of a contract. No person can as[420] certain from, it which of the parties was seller, and which was buyer, nor whether there was any actual sale between them, nor what specific article was the object of the sale, pj. jn what quantity, or what was the price. A memorandum much more intelligible than this, and defective only in one essential point, capable of full explanation by. a witness, was lately rejected by the court pf C. B. in England, on the same ground. (Champion v. Plummer, 1 Bos. & Pul. New Rep. 252.)
There was, then, no note or memorandum in writing which took the present contract out of the statute of frauds, as far, at least, as it respected the defendants.
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Kent, Ch. J.
delivered the opinion of the court. This cause depends upon the decision of these two general questions :
1. Was there a note or memorandum in writing, binding upon the defendants, within the meaning of the statute of frauds ? If not, then,
2. Was there a delivery of the sugars, so as to change the property, and throw the risk of the subsequent loss upon the defendants?
1st. The only memoranda which were made relative to the transaction, were, an entry of the sale of the sugars, made by one of the plaintiffs in their memorandum book, immediately after the alleged sale, and the minute made with the pencil of Huguet, in his pocket memorandum book. The entry of the plaintiffs, made and retained by them, was not binding upon the defendants, because the statute requires the note or memorandum to be signed by the party to be charged. The numerous cases admitting an agreement to be valid within the statute, if signed by one party only, are all of them cases in which the agreement was signed by the party against whom the performance was sought. Some of the cases arose under the 4th, and others under the 17th section of the English statute, but the words are, in this respect, similar, and require the same construction. (2 Cha. Ca. 164. 1 Powell on Contracts, 286. 5 Viner, 527. pl. 17. 1 Vezey, 82. 3 Bro. C. C. 162, 3 Atk. 503. 6 East, 307. 7 Vesey, jun. 265. 9 Vesey, jun. 234. 351. 1 Esp. Cas. 190. Ballow v. Walker, in this court, Jan. Term, 1802. 2 Caines, 120.) It has, however, been said, that there would be a want of [419] mutuality, if the plaintiffs in. this case were bound by their entry, and the defendants should not be. The same difficulty has occurred in other cases, and Lord Redesdale felt it so strongly, that he observed, (Lawrenson v. Butler, 1 Schoales and Lefroy, 20.) that to enforce every agreement signed by one party only, against such party, would be to make the statute really a statute of frauds, and that there was no late case in which one party only was bound by the agreement, where equity had decreed performance, though he admitted the import of the statute to be, that no agreement should be in force, but when signed by the party to be charged. He further intimated, that as no man signed an agreement but under a supposition that the other party was bound, as well as himself, if the other party was not bound, he signed it under a mistake, which might be a ground for relief in equity, Whether the plaintiffs, in the present case, were bound at law by their memorandum, or if bound,whether they might have relief in equity, are questions not before us, and concerning which we are not now to inquire. It is sufficient to say, that the defendants were not bound by any note or memorandum in writing of the contract, unless the same was signed by them, or their authorised agent. Huguet was in this instance their agent to make the purchase, and any memorandum made by him respecting the purchase, would operate as a memorandum made by the defendants. But the memorandum which he made, was too vague and indefinite to be a compliance with the statute. The form of the memorandum cannot be material, but it must state the contract with réasonable certainty, so that the substance of it can be made to appear, and be understood from the writing itself, without having recourse to parol proof. This is the meaning and substance of the statute, and without which, the beneficial ends of it would be entirely defeated. (Prec. in Cha. 560. 3 Atk. 503. 1 Vesey, jun. 333.) The memorandum of Huguet is absolutely unintelligible. It has not the essentials of the contract, or memorandum of a contract. No person can as[420] certain from, it which of the parties was seller, and which was buyer, nor whether there was any actual sale between them, nor what specific article was the object of the sale, pj. jn what quantity, or what was the price. A memorandum much more intelligible than this, and defective only in one essential point, capable of full explanation by. a witness, was lately rejected by the court pf C. B. in England, on the same ground. (Champion v. Plummer, 1 Bos. & Pul. New Rep. 252.)
There was, then, no note or memorandum in writing which took the present contract out of the statute of frauds, as far, at least, as it respected the defendants.
2d. The next question then is, whether here was a delivery of the goods, or of any part, so as to take the case out of the statute. The words of it are, that “thebuyer must accept part of the goods sold, and actually, receive the same.” But, notwithstanding this strong language of the statute, it has become a settled construction, that actual delivery, in the popular sense of the words, is not, in all cases, requisite, but a virtual delivery will, in some instances, be equally effectual. A delivery may be presumed or inferred from circumstances, and the doctrine on this subject was correctly laid down in this case, in the charge given by the judge to the jury. (2 Esp. Cas. 598. Roberts on Frauds, 174. to 183. 1 East, 192. 2 Caines, 44. 2 Johnson, 16.) Whether here was a delivery and acceptance, was a fact properly submitted to the jury, and assuming the competency of Huguet as a witness, the jury were well authorised to draw their conclusions in favour of t.he defendants. An objection was made to him on the ground of interest, but I think the objection was properly overruled, If he exceeded his powers, he stood indifferent between the parties, as he would, at all events, be liable to the losing party, whichsoever it might be, for the injury done by such excess ; and if he did not exceed his power, he was liable to neither. (7 Term, 480.) According to Huguets testimony, the bargain and sale was never consummated, for not only the person who was to [421] be the indorser, but whether the defendants would or would not give an indorser or surety for the payment, were circumstances attending the contract, left open until the return of one of the defendants from Philadelphia. Here was then, in the mean time, the locus penitential, and the contract could not be said to be fixed. The witnesses, undoubtedly, differed as to the conversations which passed between the parties, but the jury were the sole judges to whom the greater degree of credibility was due, and it is to be recollected, that it was a special jury of merchants. We are not dissatisfied with their verdict upon this ground. Here was no actual delivery, nor an attempt at any symbolical delivery : There was no specific designation of the goods, by marking them, or otherwise ; No delivery of the key of the store in which they were lodged. They were left in the actual possession and dominion of the plaintiffs; and under the same apparent ownership as before. If the conversations about storage, and taking a minute of the import entries, would, in such cases, amount to an actual delivery, and be deemed a substitute for the note or memorandum in writing, it appears to me, that the statute of frauds would, in a great degree, become useless, and .might be set aside as a dead letter. We do not wish to shake any of the cases "in which the actual delivery "required by the statute has been dispensed with, but those case's have gone far enough ; our leaning should be towards the plain meaning of the statute. The circumstances which are to be tantamount to an actual delivery, should be very strong and unequivocal, so as to take away all doubt as to the intent and understanding of the parties. The agreement about storage might have been conditional,.and depending upon the-final completion of the contract, as to the giving of the notes with a coriipetent'indorser ; and the taking of the minute of the import entry, was át least but an equivocal act. It was not ah indicium. "of ownership. Any person might have takeii the same paper for his own information [422] or convenience. But if Huguet was to be believed, (and his character was well supported, and his testimony corroborated by that of Lyde,) there was no delivery or acceptance of the sugars, and the bargain was left incomplete at the time of the loss. The court are of opinion, therefore, that the motion on the part of the plaintiffs - for a new trial must be denied.
Thompson, J. not having heard the argument in the Cause, gave no opinion.
Rule refused.