Desmond, J.
The question here is: did acceptance and receipt of, and payment for, part of the. goods covered by the oral contract of sale, make that sale enforcible under the Statute of Frauds (Personal Property Law, § 85), when the buyer (defendant) had declared before such acceptance and payment that it would not take the balance of the merchandise? Our answer is in the affirmative. Agreeing with the Trial Term and the Appellate Division, we hold that defendant’s unilateral denunciation, or anticipatory breach, as to one part of the goods, could not forestall or destroy the effect assigned by the statute itself to what defendant later did: that is, receive and pay for part of the lard which was the subject matter of the single oral agreement of purchase and sale. The Statute of Frauds says that such a contract shall not be enforcible “ unless the buyer shall accept part of the goods * * * so contracted to be sold * * * and actually receive the same, or give something * * * in part payment ”. We know of no authority or justification for the courts adding another condition: that partial acceptance or partial payment will fail to accomplish enforcibility if, before accepting or paying, the buyer announces that he will take and pay for only the part which he does later accept. Here the buyer’s acts, of taking and paying, produced, of and by themselves, the result mandated by the statute. Its previous declaration (that it would not take the rest) was of no consequence except as proof of an anticipatory breach.
The present suit was brought to recover damages for that anticipatory breach. Plaintiff alleged an oral agreement by defendant to buy 440,000 pounds of lard, a taking of, and [393]*393payment for, 240,000 pounds thereof, and a breach as to the balance. Defendant, besides pleading the Statute of Frauds as a defense, pleaded, and testified to, an entirely different kind of transaction whereby, according to defendant’s version it had agreed to (and did) take and pay for not 440,000, but 240,000 pounds only. But that question of fact, as to what the parties did agree to, was settled by the findings of the Trial Justice (the parties waived a jury), and the affirmance by the Appellate Division, and it was the only dispute of fact in the case. The parties agreed on the trial that 240,000 pounds had been deliberately taken and paid for, so there was no issue as to that. And there is no problem here (such as in many of the reported cases, see Burns v. McCormick, 233 N. Y. 230, 234), as to whether the partial performance was “ solely and unequivocally referable ” to the contract found by the trial court to have been made, since no one here claimed that there was more than one contract or deal between the parties, or that the sole agreement between them had been modified or cancelled by them. So we have a contract for 440,000 pounds, and delivery, acceptance and payment as to 240,000 pounds thereof. Inexorably, the statute creates the legal result: enforcibility of a treaty which, though not illegal (Crane v. Powell, 139 N. Y. 379, 384), would, absent such part performance, have gone unenforced for lack of a writing.
There are many decisions of this court which say, in one form or another that, for enforcibility of a contract to sell goods worth more than $50, there must be either a writing or acceptance and receipt of part of the goods, or part payment of the purchase money. In the first volume of our reports is Shindler v. Houston (1 N. Y. 261) where each of three Judges expressed the same thought, and each with simple clarity. Judge Bronson wrote (p. 266): “A writing must be made, part of the purchase money must be paid, or the buyer must accept and receive part of the goods.” Judge Wright’s words were (p. 267): “ There being no note or memorandum made in writing, of the contract or earnest paid, this is a case within the statute of frauds, unless there was an acceptance and receipt of the whole or a part of the property by the buyer.” Judge Gardiner agreed (p. 263) that the statute voided the contract “ unless the buyer ‘ accepted and received ’ the whole or [394]*394a part of the property sold.” Other clear and unequivocal statements of the same rule are found in Brabin v. Hyde (32 N. Y. 519, 522); Rodgers v. Phillips (40 N. Y. 519, 523, 524); Brand v. Focht (3 Keyes 409, 410); Marsh v. Rouse (44 N. Y. 643, 647); Stone v. Browning (51 N. Y. 211, 215); Van Woert v. Albany & Susquehanna R. R. Co. (67 N. Y. 538, 541) and Young v. Ingalsbe (208 N. Y. 503, 506), (and see Wood on Statute of Frauds, § 320).
The factual dispute (settled below) as to whether defendant agreed to buy 440,000 or 240,000 pounds, must not be confused with the question of law as to whether defendant’s conceded taking of 240,000 pounds made the whole contract enforcible. “It is quite true * * * that the receipt and acceptance by the vendee under a verbal agreement, otherwise void by the statute of frauds, may be complete, although the terms of the contract are in dispute. ¡Receipt and acceptance by some unequivocal act, sufficiently proven to have taken place under some contract of sale, is sufficient to take the case out of the prohibition of the statute, leaving the jury to ascertain and find from the testimony what terms of sale were actually agreed on. * * * ‘ The statute does not mean that the thing which is to dispense with the writing is to take the place of all the terms of the contract, but that the acceptance is to establish the broad fact of the relation of vendor and vendee ’ ” (Hinchman v. Lincoln, 124 U. S. 38, 54-55, and see, to the same effect, Wood on Statute of Frauds, § 334, and cases there cited).
We find no New York case exactly in point here, except Brock v. Knower (37 Hun 609) decided by the old General Term, Fifth Department, in 1885. There the defendant vendor, delivering part of the merchandise claimed by plaintiff to be covered by an oral sale contract, sent, simultaneously, a letter which the jury construed as an announcement that the rest of the goods would not be made available except at a higher price. Plaintiff, considering this to be a part delivery, and an anticipatory breach as to the balance, sued for damages, and won. The General Term held (p. 613): “ The evidence was sufficient to present the question of fact whether the delivery made was pursuant to and in part performance of the agreement of which that to sell the five cases was a part, and under circumstances which rendered the receipt and acceptance of the three pieces [395]*395effectual to validate the agreement.” We do find a statement (by way of dictum) in Gorden v. Witty (198 App. Div. 333, 336) to the effect that part performance, to make an oral contract enforcible, must be “ prior to its revocation ” (see similar language in Adams v. King, 68 Okla. 190, 192) but, to be correct at all, that must mean a mutually agreed upon cancellation. No unilateral, self-serving “ revocation ”, could be sufficient to destroy the statutory effect of a partial performance.
Perhaps the reason why none of the numerous Statute of Frauds decisions in this State give direct answer to the contention here made by defendant, is that, from earliest times, in New York, it has been held that acceptance at any time, of part of the goods, takes the transaction out of the statute (McKnight v.
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Desmond, J.
The question here is: did acceptance and receipt of, and payment for, part of the. goods covered by the oral contract of sale, make that sale enforcible under the Statute of Frauds (Personal Property Law, § 85), when the buyer (defendant) had declared before such acceptance and payment that it would not take the balance of the merchandise? Our answer is in the affirmative. Agreeing with the Trial Term and the Appellate Division, we hold that defendant’s unilateral denunciation, or anticipatory breach, as to one part of the goods, could not forestall or destroy the effect assigned by the statute itself to what defendant later did: that is, receive and pay for part of the lard which was the subject matter of the single oral agreement of purchase and sale. The Statute of Frauds says that such a contract shall not be enforcible “ unless the buyer shall accept part of the goods * * * so contracted to be sold * * * and actually receive the same, or give something * * * in part payment ”. We know of no authority or justification for the courts adding another condition: that partial acceptance or partial payment will fail to accomplish enforcibility if, before accepting or paying, the buyer announces that he will take and pay for only the part which he does later accept. Here the buyer’s acts, of taking and paying, produced, of and by themselves, the result mandated by the statute. Its previous declaration (that it would not take the rest) was of no consequence except as proof of an anticipatory breach.
The present suit was brought to recover damages for that anticipatory breach. Plaintiff alleged an oral agreement by defendant to buy 440,000 pounds of lard, a taking of, and [393]*393payment for, 240,000 pounds thereof, and a breach as to the balance. Defendant, besides pleading the Statute of Frauds as a defense, pleaded, and testified to, an entirely different kind of transaction whereby, according to defendant’s version it had agreed to (and did) take and pay for not 440,000, but 240,000 pounds only. But that question of fact, as to what the parties did agree to, was settled by the findings of the Trial Justice (the parties waived a jury), and the affirmance by the Appellate Division, and it was the only dispute of fact in the case. The parties agreed on the trial that 240,000 pounds had been deliberately taken and paid for, so there was no issue as to that. And there is no problem here (such as in many of the reported cases, see Burns v. McCormick, 233 N. Y. 230, 234), as to whether the partial performance was “ solely and unequivocally referable ” to the contract found by the trial court to have been made, since no one here claimed that there was more than one contract or deal between the parties, or that the sole agreement between them had been modified or cancelled by them. So we have a contract for 440,000 pounds, and delivery, acceptance and payment as to 240,000 pounds thereof. Inexorably, the statute creates the legal result: enforcibility of a treaty which, though not illegal (Crane v. Powell, 139 N. Y. 379, 384), would, absent such part performance, have gone unenforced for lack of a writing.
There are many decisions of this court which say, in one form or another that, for enforcibility of a contract to sell goods worth more than $50, there must be either a writing or acceptance and receipt of part of the goods, or part payment of the purchase money. In the first volume of our reports is Shindler v. Houston (1 N. Y. 261) where each of three Judges expressed the same thought, and each with simple clarity. Judge Bronson wrote (p. 266): “A writing must be made, part of the purchase money must be paid, or the buyer must accept and receive part of the goods.” Judge Wright’s words were (p. 267): “ There being no note or memorandum made in writing, of the contract or earnest paid, this is a case within the statute of frauds, unless there was an acceptance and receipt of the whole or a part of the property by the buyer.” Judge Gardiner agreed (p. 263) that the statute voided the contract “ unless the buyer ‘ accepted and received ’ the whole or [394]*394a part of the property sold.” Other clear and unequivocal statements of the same rule are found in Brabin v. Hyde (32 N. Y. 519, 522); Rodgers v. Phillips (40 N. Y. 519, 523, 524); Brand v. Focht (3 Keyes 409, 410); Marsh v. Rouse (44 N. Y. 643, 647); Stone v. Browning (51 N. Y. 211, 215); Van Woert v. Albany & Susquehanna R. R. Co. (67 N. Y. 538, 541) and Young v. Ingalsbe (208 N. Y. 503, 506), (and see Wood on Statute of Frauds, § 320).
The factual dispute (settled below) as to whether defendant agreed to buy 440,000 or 240,000 pounds, must not be confused with the question of law as to whether defendant’s conceded taking of 240,000 pounds made the whole contract enforcible. “It is quite true * * * that the receipt and acceptance by the vendee under a verbal agreement, otherwise void by the statute of frauds, may be complete, although the terms of the contract are in dispute. ¡Receipt and acceptance by some unequivocal act, sufficiently proven to have taken place under some contract of sale, is sufficient to take the case out of the prohibition of the statute, leaving the jury to ascertain and find from the testimony what terms of sale were actually agreed on. * * * ‘ The statute does not mean that the thing which is to dispense with the writing is to take the place of all the terms of the contract, but that the acceptance is to establish the broad fact of the relation of vendor and vendee ’ ” (Hinchman v. Lincoln, 124 U. S. 38, 54-55, and see, to the same effect, Wood on Statute of Frauds, § 334, and cases there cited).
We find no New York case exactly in point here, except Brock v. Knower (37 Hun 609) decided by the old General Term, Fifth Department, in 1885. There the defendant vendor, delivering part of the merchandise claimed by plaintiff to be covered by an oral sale contract, sent, simultaneously, a letter which the jury construed as an announcement that the rest of the goods would not be made available except at a higher price. Plaintiff, considering this to be a part delivery, and an anticipatory breach as to the balance, sued for damages, and won. The General Term held (p. 613): “ The evidence was sufficient to present the question of fact whether the delivery made was pursuant to and in part performance of the agreement of which that to sell the five cases was a part, and under circumstances which rendered the receipt and acceptance of the three pieces [395]*395effectual to validate the agreement.” We do find a statement (by way of dictum) in Gorden v. Witty (198 App. Div. 333, 336) to the effect that part performance, to make an oral contract enforcible, must be “ prior to its revocation ” (see similar language in Adams v. King, 68 Okla. 190, 192) but, to be correct at all, that must mean a mutually agreed upon cancellation. No unilateral, self-serving “ revocation ”, could be sufficient to destroy the statutory effect of a partial performance.
Perhaps the reason why none of the numerous Statute of Frauds decisions in this State give direct answer to the contention here made by defendant, is that, from earliest times, in New York, it has been held that acceptance at any time, of part of the goods, takes the transaction out of the statute (McKnight v. Dunlop, 5 N. Y. 537, 542). Of the decisions from other jurisdictions cited in Judge Fuld’s opinion, no single one upholds appellant’s assertion here that its prior announcement of intention not to perform the whole agreement rendered ineffectual its subsequent acceptance of part of the goods. In Brister & Koester Lbr. Corp. v. American Lbr. Corp. (356 Pa. 33); Golden Eagle Milling Co. v. Old Homestead Bakery (59 Cal. App. 541) and Howland v. Iron Fireman Mfg. Co. (188 Ore. 230) the controversy in each instance was as to whether the acceptance was under the oral arrangement sued upon, or under an entirely different and separate agreement described in the testimony; in Atherton v. Newhall (123 Mass. 141) the undelivered part was destroyed by fire while in the vendor’s possession, before the vendee took delivery of the other part. The sole support we have found in the books for the proposition advanced by appellant is a statement in Williston on Sales (Vol. 1, § 94, p. 236), that the statute is not satisfied “ if the buyer when taking part declines to take more ”. But the only eases cited by Professor Williston for that supposed rule are Atherton v. Newhall (supra) obviously a decision made on its own special facts; and Pratt v. Chase (40 Me. 269) and Dixon v. Yates (5 B. So Ad. 313) neither of which latter two cases deals in any way with the Statute of Frauds. With the authorities as they are, we would, by reversing here, be adding a new, gratuitous and unnecessary exception to the plain language of the statute.
The judgment should be affirmed, with costs.