By the Court, Daly, First Judge.
It is very clear, in this case, that the referee erred. It appeared, by the testimony of Sturges, that the defendant spolce to him about buying the hemp for Mm. Sturges accordingly opened a negotiation with the plaintiff and the plaintiff’s clerk Hanford, the plaintiff agreeing that Sturges might sell the hemp to the defendant, to be paid for as it was taken away. Sturges agreed to the terms of the sale as stated in the memorandum or sale note, which expressed every thing except the number of bales and the weight, which were to be ascertained afterwards. The names of the buyer and seller were specified, the price per ton, the time within which the hemp sold was to be paid for; that it was to remain in the plaintiff’s store at the expense and risk of the seller for one month, and thereafter at the expense and risk of the purchaser,—the defendant to pay for the hemp as he might want to take it away, at the rate of 8 per cent, per annum. This note or memorandum in writing was subscribed by Sturges in his own name, and given by him to the plaintiff The defendant,-in about a week after the making of the note, sent for eight bales, which were deliver-' ed to him ; and, in the course of a year and a half, he sent for the greater part of the hemp, by orders from time to time, which was delivered upon his orders, and for which he paid at the rate agreed upon.
From this state of facts it appears that Sturges, who was a clerk of John E. Forbes & Bros., brokers, had authority from both parties to effect the sale. His authority, as respects the defendant, having been confirmed by the defendant’s sending for the hemp from time to time and paying for what he received, as [197]*197agreed upon by Sturges. Having authority from both parties, as a broker, to effect a sale, a memorandum in writing of the contract, subscribed by Sturges in his own name, would be sufficient within the statute to charge the parties. Groom v. Aflalo, 6 B. & C. 117; Russell on Fact, and Brok. 66, 67; Blackburne on Cont. of Sale, chap. v. But the difficulty in this memorandum is, that it does not designate the quantity sold. It refers to bales of jute hemp at $80 per ton, which is again referred to as “ this hemp.” “This hemp is to remain in store,” &c. “ Mr. Darragh is to pay for this hemp as he may want to take it away,” &c. A question therefore arises, as to whether this was a sufficient note or memorandum of a contract within the meaning of the statute. As the writing refers to bales of hemp, designating them as “ this hemp,” it might be read as referring to a particular lot of hemp the exact quantity of which could be shown by other evidence, or interpreted as a contract to sell a particular .lot, the exact quantity of which was not known at the time of the making of the contract, but was to be ascertained afterwards—as if the parties had agreed in writing upon the sale of all the bales in a particular loft, or all that might come by a particular vessel. Parol evidence, in such a case, would not add anything to the contract, or alter or vary its terms; but w'ould simply explain more fully and definitely an intent that was apparent upon the face of the instrument. It is a general rule of evidence, where contracts are reduced to writing, that parol evidence will not be received to enlarge, diminish, vary, or alter what is expressed by the writing, but is always admissible to aid in interpreting it. Where it is apparent upon the face of the instrument that something is contemplated and agreed upon by the parties, which they have not distinctly defined, or expressed with sufficient clearness, parol proof, connecting the instrument with its subject matter, is always allowable to show what the parties intended and meant. But the reason upon which this familiar rule of evidence rests, it must be confessed, is distinguishable from that which, according to the preamble of the Statute of Frauds, originally led to the enactment of the provision that certain agreements should be void, if not in writing. 1 Evans’ [198]*198Stat., p. 211. In respect to the rule of evidence, it rests upon the presumption that, as the parties have reduced their contract to writing, they have expressed by it what they intended, and that therefore nothing should be received except to interpret the writing where they have left what they meant obscure, doubtful, uncertain, or not fully expressed. But where there is an agreement for the sale of goods of a greater value than fifty dollars, and no part of the purchase money is paid, or no portion of the goods have been delivered, the Statute of Frauds makes it essential to the very existence of a contract that it should be in writing ; and if a contract cannot be clearly and intelligibly extracted from the writing, it may be said that the foundation is wanting on which alone it can rest. In other cases, a contract may be partly in writing and partly in parol; but the design and intent of the statute was, in the cases specified, to compel parties to -put their agreement in writing; and, if they have failed to express what they meant, it is at least doubtful if .the defect can be aided by a resort to parol proof. The writing was designed to be the evidence of the contract, and the strong leaning of the authorities is, that it must clearly appear by the writing what the parties agreed to do; that it must show a valid and binding contract entered into which can be enforced, and that in that respect it cannot be aided, assisted, or helped out by parol proof. Boydell v. Drummond, 11 East, 160; Chuan v. Cooke, 1 Sch. & Lef. 22; Rose v. Cunningham, 11 Ves. 550; Elmore v. Kingsgate, 5 B. & C. 583; Acebal v. Levy, 10 Bing. 376; Lord Ormond v. Anderson, 2 B. & B. 368; Hind v. Whithouse, 7 East, 558; Kenworthy v. Schofield, 2 B. & C. 948; Seagood v. Meale, Prec. Chy. 560; Peltier v. Collins, 3 Wend. 465; Bailey v. Ogden, 3 Johns. 418; Weightman v. Caldwell, 4 Wheat. 85. I do not mean to express my full assent to this view of the construction of the Statute of Frauds, as I am strongly inclined to think that the design and object of the statute does not demand so strict and rigid an interpretation. Nor am I prepared to admit that parol evidence would not be receivable here, to show that the bales of hemp referred to in this written memorandum meant a particular lot, the number or quan[199]*199t-ity of which was to be ascertained, and that, as thus interpreted, it would not be a sufficient note or memorandum of the contract, within the meaning and intent of the statute; (see Wildman v. Glossop, 1 Barn. & Aid. 9; Valpy v. Gibson, 4 Com. Bench, 837; Van Ness, J., in Abeel v. Radcliffe, 13 Johns. R. 300; Blay len v. Bradley, 12 Ves. 446); but, as the point would require an extended examination, embracing a long review of the authorities, I prefer, therefore, to rest our decision, as to the error of the referee, upon another ground.
Conceding that this was not a note or memorandum under the statute, the evidence in the case fully established an agreement for the sale of 356 bales of jute hemp, upon the terms and conditions stated in the writing, which was afterwards consummated and became a valid contract under the statute, by the delivery and acceptance, by the defendant, of the greater part of the hemp. The evidence establishing such an agreement and partial delivery is, in my judgment, very clear.
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By the Court, Daly, First Judge.
It is very clear, in this case, that the referee erred. It appeared, by the testimony of Sturges, that the defendant spolce to him about buying the hemp for Mm. Sturges accordingly opened a negotiation with the plaintiff and the plaintiff’s clerk Hanford, the plaintiff agreeing that Sturges might sell the hemp to the defendant, to be paid for as it was taken away. Sturges agreed to the terms of the sale as stated in the memorandum or sale note, which expressed every thing except the number of bales and the weight, which were to be ascertained afterwards. The names of the buyer and seller were specified, the price per ton, the time within which the hemp sold was to be paid for; that it was to remain in the plaintiff’s store at the expense and risk of the seller for one month, and thereafter at the expense and risk of the purchaser,—the defendant to pay for the hemp as he might want to take it away, at the rate of 8 per cent, per annum. This note or memorandum in writing was subscribed by Sturges in his own name, and given by him to the plaintiff The defendant,-in about a week after the making of the note, sent for eight bales, which were deliver-' ed to him ; and, in the course of a year and a half, he sent for the greater part of the hemp, by orders from time to time, which was delivered upon his orders, and for which he paid at the rate agreed upon.
From this state of facts it appears that Sturges, who was a clerk of John E. Forbes & Bros., brokers, had authority from both parties to effect the sale. His authority, as respects the defendant, having been confirmed by the defendant’s sending for the hemp from time to time and paying for what he received, as [197]*197agreed upon by Sturges. Having authority from both parties, as a broker, to effect a sale, a memorandum in writing of the contract, subscribed by Sturges in his own name, would be sufficient within the statute to charge the parties. Groom v. Aflalo, 6 B. & C. 117; Russell on Fact, and Brok. 66, 67; Blackburne on Cont. of Sale, chap. v. But the difficulty in this memorandum is, that it does not designate the quantity sold. It refers to bales of jute hemp at $80 per ton, which is again referred to as “ this hemp.” “This hemp is to remain in store,” &c. “ Mr. Darragh is to pay for this hemp as he may want to take it away,” &c. A question therefore arises, as to whether this was a sufficient note or memorandum of a contract within the meaning of the statute. As the writing refers to bales of hemp, designating them as “ this hemp,” it might be read as referring to a particular lot of hemp the exact quantity of which could be shown by other evidence, or interpreted as a contract to sell a particular .lot, the exact quantity of which was not known at the time of the making of the contract, but was to be ascertained afterwards—as if the parties had agreed in writing upon the sale of all the bales in a particular loft, or all that might come by a particular vessel. Parol evidence, in such a case, would not add anything to the contract, or alter or vary its terms; but w'ould simply explain more fully and definitely an intent that was apparent upon the face of the instrument. It is a general rule of evidence, where contracts are reduced to writing, that parol evidence will not be received to enlarge, diminish, vary, or alter what is expressed by the writing, but is always admissible to aid in interpreting it. Where it is apparent upon the face of the instrument that something is contemplated and agreed upon by the parties, which they have not distinctly defined, or expressed with sufficient clearness, parol proof, connecting the instrument with its subject matter, is always allowable to show what the parties intended and meant. But the reason upon which this familiar rule of evidence rests, it must be confessed, is distinguishable from that which, according to the preamble of the Statute of Frauds, originally led to the enactment of the provision that certain agreements should be void, if not in writing. 1 Evans’ [198]*198Stat., p. 211. In respect to the rule of evidence, it rests upon the presumption that, as the parties have reduced their contract to writing, they have expressed by it what they intended, and that therefore nothing should be received except to interpret the writing where they have left what they meant obscure, doubtful, uncertain, or not fully expressed. But where there is an agreement for the sale of goods of a greater value than fifty dollars, and no part of the purchase money is paid, or no portion of the goods have been delivered, the Statute of Frauds makes it essential to the very existence of a contract that it should be in writing ; and if a contract cannot be clearly and intelligibly extracted from the writing, it may be said that the foundation is wanting on which alone it can rest. In other cases, a contract may be partly in writing and partly in parol; but the design and intent of the statute was, in the cases specified, to compel parties to -put their agreement in writing; and, if they have failed to express what they meant, it is at least doubtful if .the defect can be aided by a resort to parol proof. The writing was designed to be the evidence of the contract, and the strong leaning of the authorities is, that it must clearly appear by the writing what the parties agreed to do; that it must show a valid and binding contract entered into which can be enforced, and that in that respect it cannot be aided, assisted, or helped out by parol proof. Boydell v. Drummond, 11 East, 160; Chuan v. Cooke, 1 Sch. & Lef. 22; Rose v. Cunningham, 11 Ves. 550; Elmore v. Kingsgate, 5 B. & C. 583; Acebal v. Levy, 10 Bing. 376; Lord Ormond v. Anderson, 2 B. & B. 368; Hind v. Whithouse, 7 East, 558; Kenworthy v. Schofield, 2 B. & C. 948; Seagood v. Meale, Prec. Chy. 560; Peltier v. Collins, 3 Wend. 465; Bailey v. Ogden, 3 Johns. 418; Weightman v. Caldwell, 4 Wheat. 85. I do not mean to express my full assent to this view of the construction of the Statute of Frauds, as I am strongly inclined to think that the design and object of the statute does not demand so strict and rigid an interpretation. Nor am I prepared to admit that parol evidence would not be receivable here, to show that the bales of hemp referred to in this written memorandum meant a particular lot, the number or quan[199]*199t-ity of which was to be ascertained, and that, as thus interpreted, it would not be a sufficient note or memorandum of the contract, within the meaning and intent of the statute; (see Wildman v. Glossop, 1 Barn. & Aid. 9; Valpy v. Gibson, 4 Com. Bench, 837; Van Ness, J., in Abeel v. Radcliffe, 13 Johns. R. 300; Blay len v. Bradley, 12 Ves. 446); but, as the point would require an extended examination, embracing a long review of the authorities, I prefer, therefore, to rest our decision, as to the error of the referee, upon another ground.
Conceding that this was not a note or memorandum under the statute, the evidence in the case fully established an agreement for the sale of 356 bales of jute hemp, upon the terms and conditions stated in the writing, which was afterwards consummated and became a valid contract under the statute, by the delivery and acceptance, by the defendant, of the greater part of the hemp. The evidence establishing such an agreement and partial delivery is, in my judgment, very clear.
Forbes, a broker, whose clerk, Sturges, effected the sale, testified that the defendant told him, about the time of the sale, that he wanted to buy all the jute hemp that was then in New York. Sturges swore that the defendant spoke to him about buying the hemp; that the negotiation was conducted by him; that he made the purchase in two hours; that he saw the hemp in a store in Water-street, before it was sold; that he knew it to be the plaintiff’s hemp; that the hemp he sold to the defendant was the lot he saw; that he told the defendant that the plaintiff had such a lot of hemp, and where it was, referring to it as hemp of such a mark and quality in the cellar in Water street; and that the result was, that he bought the lot for him; that the sale note expressed everything except the number of bales and their weight; that they did not put the number in the sale note, because they did not know whether it was 340 or 360 bales; that that was all that was to be ascertained, and the quantity was left to be filled up. He further testified that he saw some of the hemp afterwards in another street, which was said to belong to the Water-street lot; and the defendant’s clerk testified that part [200]*200of it was kept in Beaver-street, and the balance in the plaintiff’s store in Water-street; that the plaintiff had no other lot of hemp at the time the sale was made to the defendant; and that a bill of the hemp, as to quantity and amount, specifying- the amount in dollars and cents, was given by him to the defendant, and that the defendant made no objection to the bill. On his further examination he stated, “ My impression is so' strong that it amounts to a conviction, that, shortly after the sale, I gave Darragh a bill of parcels of this purchase, giving the amount in dollars and cents, but I would not like to swear to it positively ; I cannot be positive enough to swear to the circumstances.” He further testified, without objection, to an entry made by him on the plaintiff’s books, on the day of the date of the sale noté, of a sale of 856 bales, with the marks and weights of the bales, corresponding with the schedule annexed to the complaint, and forming a part of it.
The referee, by his report, finds, among other conclusions of fact, that although the number of bales ivas not mentioned in the sale note, that the number sold 'was 356, and that the greater part of it was delivered to the defendant in such parcels as he required, either for his own use or upon orders given by him on the plaintiff, in favor of purchasers to whom the defendant had sold, between the 23d of August, 1850, and the 27th of January, 1852,. and that such parcels were paid for as they were taken away.
Having thus found the facts, he finds, as one of'his conclusions of law, that there was not such an acceptance and receipt of part oí the hemp contracted to be sold as is required by the statute, in order to charge the defendant in this action as the purchaser of the whole; his other conclusion of law being, that there was no note or memorandum within the meaning of the statute.
I confess myself at a loss to understand upon what ground the referee came to the conclusion that there was not such an acceptance and receipt of part of the hemp contracted to be sold as is required by the statute, unless it was upon the authority of a case to which we are referred in the respondent’s points, (-Sey[201]*201mour v. Davis, 2 Sandf. S. C. R. 245), decided in the Superior Court, of which, court the learned referee was formerly a member, in which it was held that a delivery and acceptance of part of the goods agreed to be sold must, within the meaning of the statute, take place at the time of the making of the contract. That if there is a delivery of a part afterwards, it will not reanimate the previous void agreement, but constitutes a separate and distinct contract, upon which an action may be maintained for the price of what has been delivered. This decision was founded in a mistake. The late Mr. Justice Sandford, in support of the conclusion arrived at, delivered an elaborate opinion reviewing the English cases, as well as the authorities in this State down to the time of the Revised Statutes, but, by a singular oversight, the court omitted to look into the Revised Statutes, where they would have found that a material change had been made in that portion of the Statute of Frauds relating to the sale of goods, the revisers having introduced a provision in respect to time, but confining it to the payment of part of the purchase money, which must be made at the time of making of the contract. The statute, as thus altered, received a judicial construction by the Supreme Court in Sprague v. Blake, (20 Wend. 61), in-which it.was held, ten years before this decision in the Superior Court, that a subsequent acceptance in whole or in part of the article agreed to be sold, rendered the contract valid,—which was an authority binding upon the Superior Court when Seymour v. Davis was decided; and any question upon this point was finally put at rest by the decision of the Court of Appeals in McKnight v. Dunlop, (1 Seld. 537), in which it was expressly held that a verbal agreement for the sale of personal property exceeding fifty dollars, is valid if a part of the property has been delivered to the purchaser and accepted by him in pursuance of the agreement, although such delivery and acceptance took place several months after the making of the verbal agreement. The verbal agreement in that case was made in June for the sale of 5,000 bushels of malt, 1400 bushels of which were delivered and accepted in the months of August and September next following. Upon the authority of McKnight v. Dun-[202]*202lop, therefore, the delivery and acceptance of a large part of the hemp between the 23d of August, 1850, and the 27th of January 1852, rendered the verbal agreement for the sale of the whole a valid and binding contract under the statute.
The referee found that it was not proved that the defendant had given the plaintiff any special authority to sell the damaged bales on his account, and that there was no evidence that he, the plaintiff, had given the defendant notice of his intention to sell them. The evidence reported by him, shows that the testimony in respect to a general authority to sell was explicit and uncontradicted. The plaintiff’s clerk, Hanfield, testified that the defendant “ ordered us to sell the jute for him as much as we could, and I did soand, again, “ I am perfectly certain that we were authorized by Mr. Darragh to sell the hemp for him; he wished me over and over again to sell it for him, and would ask me if I had done sO’j my impression is that I reported to him the sales we made, but cannot say. I saw Darragh long before the sale of the damaged bales; had conversations with him about the damage near that time. * * I don’t know that he ever gave me any directions with regard to that particular parcel. After the hemp was all sold, I gave Darragh. an account of the transaction. * * I recollect that he objected to the damage.” It is very clear, from this testimony, that a general authority was given by the defendant to the plaintiff’s clerk to sell as much of the hemp as he could, without any reservation as to the bales that were damaged, which were thirty-three in number. The damage to these bales was not shown to have occurred through any negligence on the part of the plaintiff. It was damaged by dry rot, supposed to have been occasioned by the absorption of moisture from the floor of the place where it was stored, though it was on high ground, and the floor was dry when the hemp was placed on it.
The extent of the defendant’s liability was not gone into by the referee; for, having arrived at the conclusion that there was no contract for the sale of the 356 bales, all other questions in the case became immaterial. As the report must be set aside, it would be better, perhaps, that we should not express any opinion [203]*203as to the amount which the plaintiff was entitled to recover upon the evidence; for, as there must be a rehearing, testimony may be introduced which may materially affect that question. It is enough for us to say that upon the evidence, as it now stands, the plaintiff was entitled to recover, and that for that reason the report must be set aside.
Judgment reversed, and new trial ordered.