Peck, J.
It is conceded that if the paper delivered by Jos* lin to the plaintiff was so delivered by the defendant and accepted by the plaintiff as to give it efficiency to the extent of its provisions or as a contract, it would exclude the parol evidence and defeat the plaintiff in his action, and the court in effect so told the jury.
The defendant claimed that it was the written contract of the parties, and that it excluded the parol evidence. The plaintiff denied its existence as a contract, and insisted on the right to prove the contract by parol evidence.
The defendant, having objected to the parol evidence on the ground that the contract was in writing, took the burden on himself to show that fact; that is, that there was such a written contract entered into between the parties. This involved proof not only that a written contract was executed, but that it was delivered.
The delivery of a written contract is no part of the contract, and is not proved by it. It is an act done in reference to it, but indispensable to give it efficacy 10 bind the parties to it. This act intervenes between the execution of the contract and the time when it becomes operative, and the proof of it essentially rests in parol.
This the defendant might have proved in various ways so as to exclude parol evidence of the terms of the contract: by the admission of the plaintiff, by a preliminary inquiry of him on the stand, or by Joslin, who handed it to the plaintiff, or, as was probably the fact- in this case, by the production of it on trial by the plaintiff at the defendant’s request, thereby showing it into the plaintiff’s possession ; for although this paper is not signed by the plaintiff, but by the other party only; yet, as a general rule, a delivery by the party signing a contract to the other party accepting it, binds the latter, as his assent to its terms is to be [572]*572presumed. This paper being shown into the custody of the plaintiff, a due and proper delivery of it was to be presumed, and the burden is thrown on the plaintiff to obviate that presumption by proof. Was the evidence ■ introduced by the plaintiff as to the circumstances under which the paper came into his possession, competent and sufficient to show that there was no such delivery of the paper as to make it operative as a binding contract ?
There is no legal objection to the character of the evidence, that is, that it was parol evidence, since the qn estion of delivery rests in parol. The defendant’s evidence to prove the delivery was, in its nature, parol, and hence may be met by parol evidence on the other side. The real question is as to its sufficiency to do away with the prima facie influence of a delivery arising from the fact that the paper was shown in the plaintiff’s possession at the trial.
This presents the question, what is a delivery ? It is in its legal acceptation something more than merely changing the manual custody or possession. That may or may not be a deliv- v ery according to the intent of the parties. It is a question of intent and purpose ; of mutual intent and purpose implying an acceptance as well as a delivery. It is the final act of the parties by which the party executing the instrument puts it into the possession of the other party to it, who receives it, both intending thereby to make it operative and binding. This intent and purpose is generally inferred from the act itself of thus changing the custody, or from the fact that the party to whom it purports to be executed has it in his possession, but it may be explained and rebutted. It may be shown that the party executing the contract ihanded it to the other party, not as a final delivery, but to be' ¡examined and returned to the party for further examination, or for the purpose of being retained till some precedent act is done by the party to whom it purports to be executed. It may be shown that the party obtained possession of it by accident, and against the will of the other party, or that by mistake of both parties a wrong paper was delivered. Nor is it necessary that it should be shown that it was by a mistake of both parties: a mis take of either is sufficient, especially when that mistake is caused by the conduct and declarations of the other party, as the jury found in this case.
[573]*573Suppose that the plaintiff after making the verbal contract as he did with Wilder, had offered to pay him $50, on some prior dealings or indebtedness in no way connected with this contract, or with the transportation of the sheep in question, and,on Wilder’s telling him to hand it to Joslin and that Joslin would give him a receipt for it, had paid it to Joslin and Joslin supposing it applied • to the freight of the sheep had given him this paper, and he had taken it as he testified without reading it, supposing it was a receipt for the money on the prior indebtedness and nothing more, and did not know to the contrary till after this controversy arose, could it be claimed that he would be bound by it as the contract of the defendant to which he had no reason to suppose it had any relation ? Clearly this would not be a delivery that would thus bind him. But it is claimed by defendant’s counsel that as the plaintiff knew it had reference to this transaction, if he took it without reading it he did so at his peril and is bound by its contracts. It is true he knew the money he paid had reference to, the contract he had just made, and supposed the receipt was a' receipt for the freight he was to pay upon it, but the jury have; found that from what transpired and from what was said andj done, he did not suppose, and had no reason - to suppose it was! any thing more than a receipt for the money so to apply. The \ payment by the plaintiff was but a performance of his part of the contract, and a receipt for it would only be a written admission . by the other party of the fact of payment ; therefore the plaintiff,i although he knew the receipt was to apply to this transaction, I had no reason to suppose it would contain the terms of thei defendant’s undertaking, as that would not be within the scope or \ meaning of the term receipt, either in the legal or popular sense. ' A receipt and a contract are entirely different. One discharges, and the other creates, an obligation.
The plaintiff by being promised a receipt for the money, and so understanding it, had no notice that the paper delivered was a contract between the parties, so that the case in principle is the same as if the receipt he was to receive had reference to some other debt or transaction. The evidence, we think, tended to show that there never was any such delivery and acceptance of the paper, as a contract, as to make it binding as such between the [574]*574parties, and the evidence was left to the jury under proper instructions, and they having so found were properly allowed to resort to the parol evidence of the contract.
The defendant having failed in the preliminary proof in establishing the fact that there was a written contract between the parties, his objection to the parol evidence was left with no foundation to rest upon.
It is conceded that if the plaintiff had been thus deceived through the fraud of the defendant such would be the result. But fraud under the circumstances of this case is unnecessary. The mistake and misapprehension produced by the declarations and conduct of the other party, is the same in its consequences to the plaintiff, and we think in legal effect, as fraud. It is entirely different from showing a mistake in the terms of a written contract duly delivered.
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Peck, J.
It is conceded that if the paper delivered by Jos* lin to the plaintiff was so delivered by the defendant and accepted by the plaintiff as to give it efficiency to the extent of its provisions or as a contract, it would exclude the parol evidence and defeat the plaintiff in his action, and the court in effect so told the jury.
The defendant claimed that it was the written contract of the parties, and that it excluded the parol evidence. The plaintiff denied its existence as a contract, and insisted on the right to prove the contract by parol evidence.
The defendant, having objected to the parol evidence on the ground that the contract was in writing, took the burden on himself to show that fact; that is, that there was such a written contract entered into between the parties. This involved proof not only that a written contract was executed, but that it was delivered.
The delivery of a written contract is no part of the contract, and is not proved by it. It is an act done in reference to it, but indispensable to give it efficacy 10 bind the parties to it. This act intervenes between the execution of the contract and the time when it becomes operative, and the proof of it essentially rests in parol.
This the defendant might have proved in various ways so as to exclude parol evidence of the terms of the contract: by the admission of the plaintiff, by a preliminary inquiry of him on the stand, or by Joslin, who handed it to the plaintiff, or, as was probably the fact- in this case, by the production of it on trial by the plaintiff at the defendant’s request, thereby showing it into the plaintiff’s possession ; for although this paper is not signed by the plaintiff, but by the other party only; yet, as a general rule, a delivery by the party signing a contract to the other party accepting it, binds the latter, as his assent to its terms is to be [572]*572presumed. This paper being shown into the custody of the plaintiff, a due and proper delivery of it was to be presumed, and the burden is thrown on the plaintiff to obviate that presumption by proof. Was the evidence ■ introduced by the plaintiff as to the circumstances under which the paper came into his possession, competent and sufficient to show that there was no such delivery of the paper as to make it operative as a binding contract ?
There is no legal objection to the character of the evidence, that is, that it was parol evidence, since the qn estion of delivery rests in parol. The defendant’s evidence to prove the delivery was, in its nature, parol, and hence may be met by parol evidence on the other side. The real question is as to its sufficiency to do away with the prima facie influence of a delivery arising from the fact that the paper was shown in the plaintiff’s possession at the trial.
This presents the question, what is a delivery ? It is in its legal acceptation something more than merely changing the manual custody or possession. That may or may not be a deliv- v ery according to the intent of the parties. It is a question of intent and purpose ; of mutual intent and purpose implying an acceptance as well as a delivery. It is the final act of the parties by which the party executing the instrument puts it into the possession of the other party to it, who receives it, both intending thereby to make it operative and binding. This intent and purpose is generally inferred from the act itself of thus changing the custody, or from the fact that the party to whom it purports to be executed has it in his possession, but it may be explained and rebutted. It may be shown that the party executing the contract ihanded it to the other party, not as a final delivery, but to be' ¡examined and returned to the party for further examination, or for the purpose of being retained till some precedent act is done by the party to whom it purports to be executed. It may be shown that the party obtained possession of it by accident, and against the will of the other party, or that by mistake of both parties a wrong paper was delivered. Nor is it necessary that it should be shown that it was by a mistake of both parties: a mis take of either is sufficient, especially when that mistake is caused by the conduct and declarations of the other party, as the jury found in this case.
[573]*573Suppose that the plaintiff after making the verbal contract as he did with Wilder, had offered to pay him $50, on some prior dealings or indebtedness in no way connected with this contract, or with the transportation of the sheep in question, and,on Wilder’s telling him to hand it to Joslin and that Joslin would give him a receipt for it, had paid it to Joslin and Joslin supposing it applied • to the freight of the sheep had given him this paper, and he had taken it as he testified without reading it, supposing it was a receipt for the money on the prior indebtedness and nothing more, and did not know to the contrary till after this controversy arose, could it be claimed that he would be bound by it as the contract of the defendant to which he had no reason to suppose it had any relation ? Clearly this would not be a delivery that would thus bind him. But it is claimed by defendant’s counsel that as the plaintiff knew it had reference to this transaction, if he took it without reading it he did so at his peril and is bound by its contracts. It is true he knew the money he paid had reference to, the contract he had just made, and supposed the receipt was a' receipt for the freight he was to pay upon it, but the jury have; found that from what transpired and from what was said andj done, he did not suppose, and had no reason - to suppose it was! any thing more than a receipt for the money so to apply. The \ payment by the plaintiff was but a performance of his part of the contract, and a receipt for it would only be a written admission . by the other party of the fact of payment ; therefore the plaintiff,i although he knew the receipt was to apply to this transaction, I had no reason to suppose it would contain the terms of thei defendant’s undertaking, as that would not be within the scope or \ meaning of the term receipt, either in the legal or popular sense. ' A receipt and a contract are entirely different. One discharges, and the other creates, an obligation.
The plaintiff by being promised a receipt for the money, and so understanding it, had no notice that the paper delivered was a contract between the parties, so that the case in principle is the same as if the receipt he was to receive had reference to some other debt or transaction. The evidence, we think, tended to show that there never was any such delivery and acceptance of the paper, as a contract, as to make it binding as such between the [574]*574parties, and the evidence was left to the jury under proper instructions, and they having so found were properly allowed to resort to the parol evidence of the contract.
The defendant having failed in the preliminary proof in establishing the fact that there was a written contract between the parties, his objection to the parol evidence was left with no foundation to rest upon.
It is conceded that if the plaintiff had been thus deceived through the fraud of the defendant such would be the result. But fraud under the circumstances of this case is unnecessary. The mistake and misapprehension produced by the declarations and conduct of the other party, is the same in its consequences to the plaintiff, and we think in legal effect, as fraud. It is entirely different from showing a mistake in the terms of a written contract duly delivered. It is therefore, unnecessary to enter into the question or into the causes, in reference to the admission of parol evidence of a contract when there is a contract in writing, for here was no written contract.
Another question is made as to the admission of certain evidence objected to by the defendant, and admitted by the court, as to Wednesday being the market day, and as to the loss of the plaintiff in the sale of his sheep in consequence of the sheep not being in New York that day. It appears that the plaintiff testified that Wednesday was the best and principal market day for sheep ; that the best buyers came on that day, and that the loss in his sheep in the price for which they had to be sold on account of their arriving on Thursday, instead of Wednesday, was fifty cents per head ; that he had been to New York to sell sheep the week before this flock of sheep was sent, and that what he testified as to Wednesday being the chief market day, and as to his loss on account of their not arriving on Wednesday, was founded on what he learned from being at New York on those two occasions, and from his inquiries there made in regard to such matters. This was objected to by the defendant, but admitted by the court.
On reference to the minutes of the judge who tried the case, it appears that the testimony of the witness as to his means of knowledge came out on the defendant’s cross examination. It [575]*575does not appear from the exceptions on what ground the defendant objected to this testimony, as the objection is general. It is now objected that the facts testified to by the witness on the direct examination, are not competent evidence, and also that his means of knowledge, as shown on cross examination, rendered his testimony inadmissible. "Waiving the question made by the plaintiff whether these objections can now be raised as the case is presented, we think the defendant’s objection must be overruled. The knowledge of a party of the general course of business in a particular trade, which he derives from being engaged in that trade, although partly derived from information from others in the course of such business, is of that general character that renders it competent evidence. Such is the character of this evidence. The limited extent of the knowledge of this witness was a question to be considered by the jury in weighing the evidence, and not one affecting its competency.
As to the other objection to the admission of this evidence, that the damages it tended to prove are too remote, we think that is equally untenable, as it appears, or at least the evidence so tends to show, that the defendant was informed of these facts at the time the contract was made as a reason why the plaintiff Wanted the sheep in New York on that market day. If it. was necessary, in order to entitle the plaintiff to recover such damages, to show that the defendant had such notice at the time the contract was made, (as to which we express no opinion,) the evidence tended to show it, and it is to be presumed the charge of the court was correct in this point, as no exception is taken to the charge, except in relation to the paper, and it is stated that in all other respects the charge was satisfactory to th§ defendant.
Exceptions overruled and judgment affirmed.