Colt, J.
The plaintiff relied on an oral contract of sale to the defendant of a quantity of wool in bales then in Boston, and held in store by one Williams. The sale was by sample at the invoice weight for a given price per pound, and the bales were specifically designated and appropriated by the terms of the contract.
[332]*332At the time of the great fire of November 9, 1872, a part of the wool had been sent to the railroad station in Boston, and was either there or at the defendant’s mill in Maine, or in transit to the mill, and a part remained and was burned in the storehouse of Williams. The defendant denies his liability for the wool burned.
He contends, first, that the contract was not a completed contract of sale, because something connected with the shipment or delivery of the wool remained to be done by the plaintiff. But the instructions upon this point were sufficiently favorable to the defendant, and upon evidence which, though conflicting, was sufficient to warrant the finding; the jury must have found that nothing remained to be done on the part of the seller in the way of ascertaining, appropriating or delivering the property. It is well settled that by such a contract, independently of the statute of frauds, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such was not the intention of the parties. Morse v. Sherman, 106 Mass. 430. Foster v. Ropes, 111 Mass. 10. Haskins v. Warren, 115 Mass. 514. Goddard v. Binney, Ib. 450.
The defendant next relies upon the statute of frauds set up in his answer, and contends that there was no acceptance or receipt of any part of the wool sufficient to take the case out of its provisions as to the part burned.
There was, however, evidence which justified the jury in finding that the storekeeper Williams, after being notified of the sale by both parties, and of the fact that the property belonged to the defendant, undertook at his request to deal with and hold it for him. Such an arrangement the jury may have found constituted a sufficient acceptance and receipt to make the contract “ good and valid.” It is well settled that the warehouseman in such case becomes the agent of the buyer and holds possession for his principal. Cushing v. Breed, 14 Allen, 376. Boardman v. Spooner, 13 Allen, 353. Hatch v. Bayley, 12 Cush. 27. Browne St. Frauds, § 318. But the evidence upon this point was conflicting, and some of it tended to prove that there was no acceptance of the wool or any part of it through the agency of Williams, or until after the fire. It cannot be certainly known that the verdict was not founded upon an acceptance by the defendant at [333]*333his mill in Maine, after the fire, of a part of the wool which had been sent on by railroad.
The instructions given by the court applicable to this aspect of the case were not excepted to, and are not reported. It is to be presumed that they were apt and sufficient, unless the specific instructions requested by the defendant should have been given in whole or in part; and that is the remaining question.
The first two instructions requested were designed to support the statute defence, by avoiding the legal effect of the alleged acceptance, at the mill, of part of the wool. The acceptance referred to is that which the statute requires to give validity to the contract. It must be with intention to perform the whole contract and assert the buyer’s ownership under it, but it is sufficient if it be of part of the goods only. Such an acceptance implies the existence of a completed contract, sufficient to pass the title, which is not to be confounded with that actual transfer of possession necessary to defeat the vendor’s lien or his right of stoppage in transitu, or to show an actual receipt under the statute. Morse v. Sherman, cited above. Browne St. Frauds, § 317.
The first request in all its parts is to be taken together and treated as one; the proposition that delivery of part to the Eastern Railroad Company would not satisfy the statute of frauds, even as to that part, being preliminary only, and for the purpose of leading up to the main proposition in regard to the subsequent acceptance of such part.
The judge properly declined to rule that an acceptance, as thus defined, of part of the wool would not operate to take the contract out of the statute, as to the part which the plaintiff had not sent, although by the terms of the contract the seller was to ship it all by railroad at the defendant’s expense.
In the second request the judge was asked distinctly to rule that an acceptance of part of the wool would not operate upon the contract to render it valid retrospectively, or make the defendant liable to pay for that which had been destroyed by fire. This presents the question whether the date of the acceptance or the date of the agreement will be treated, as between the parties, as the time when the contract was made, and the risk of loss of the goods was cast on the buyer. No direct adjudication of this precise point is cited, if we except a New York case in which it [334]*334seems to be held, in a per curiam opinion, that a loss which happens after the original agreement and before the acceptance required by the statute, must fall on the purchaser. Vincent v. Germond, 11 Johns. 283.
The decision of it depends upon the construction to be given to that part of the statute applicable to sales of personal property, which is incorporated in the Gen. Sts. c. 105, § 5, and follows, with slight variation, the words of the seventeenth section of the English statute.
The purpose of this celebrated enactment, as declared in the preamble and gathered from all its provisions, is to prevent fraud and falsehood, by requiring a party, who seeks to enforce an oral contract in court, to produce, as. additional evidence, some written memorandum signed by the party sought to be charged, or proof of some act confirmatory of the contract relied on. It does not prohibit such contract. It does not declare that it shall be void or illegal, unless certain formalities are observed. If executed, the effect of its performance on the rights of the parties is not changed, and the consideration may be recovered. Stone v. Dennison, 13 Pick. 1. Basford v. Pearson, 9 Allen, 387. Nutting v. Dickinson, 8 Allen, 540. The memorandum required is the memorandum of only one of the parties; the alternative acts of the seventeenth section proceed from one only; they presuppose a contract, and are in affirmance or partial execution of it; they are not essential to its existence ; need not be contemporaneous, and are not prescribed elements in its formation. .It is declared in the fourth section that no action shall be brought upon the promises therein named, unless some memorandum of the agreement shall be in writing; and in the seventeenth that no contract for the sale of goods “ shall be allowed to be good,” or, as in our statute, “ shall be good and valid,” unless the buyer accepts and receives part or gives earnest, or there is some memorandum signed by the parties to be charged, or, as in our statute, by the party to be charged. It is true there is difference in phraseology in these sections; but in view of the policy of the enactment, and the necessity of giving consistency to all its parts, this difference cannot be held to change the force and effect of the two sections.
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Colt, J.
The plaintiff relied on an oral contract of sale to the defendant of a quantity of wool in bales then in Boston, and held in store by one Williams. The sale was by sample at the invoice weight for a given price per pound, and the bales were specifically designated and appropriated by the terms of the contract.
[332]*332At the time of the great fire of November 9, 1872, a part of the wool had been sent to the railroad station in Boston, and was either there or at the defendant’s mill in Maine, or in transit to the mill, and a part remained and was burned in the storehouse of Williams. The defendant denies his liability for the wool burned.
He contends, first, that the contract was not a completed contract of sale, because something connected with the shipment or delivery of the wool remained to be done by the plaintiff. But the instructions upon this point were sufficiently favorable to the defendant, and upon evidence which, though conflicting, was sufficient to warrant the finding; the jury must have found that nothing remained to be done on the part of the seller in the way of ascertaining, appropriating or delivering the property. It is well settled that by such a contract, independently of the statute of frauds, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such was not the intention of the parties. Morse v. Sherman, 106 Mass. 430. Foster v. Ropes, 111 Mass. 10. Haskins v. Warren, 115 Mass. 514. Goddard v. Binney, Ib. 450.
The defendant next relies upon the statute of frauds set up in his answer, and contends that there was no acceptance or receipt of any part of the wool sufficient to take the case out of its provisions as to the part burned.
There was, however, evidence which justified the jury in finding that the storekeeper Williams, after being notified of the sale by both parties, and of the fact that the property belonged to the defendant, undertook at his request to deal with and hold it for him. Such an arrangement the jury may have found constituted a sufficient acceptance and receipt to make the contract “ good and valid.” It is well settled that the warehouseman in such case becomes the agent of the buyer and holds possession for his principal. Cushing v. Breed, 14 Allen, 376. Boardman v. Spooner, 13 Allen, 353. Hatch v. Bayley, 12 Cush. 27. Browne St. Frauds, § 318. But the evidence upon this point was conflicting, and some of it tended to prove that there was no acceptance of the wool or any part of it through the agency of Williams, or until after the fire. It cannot be certainly known that the verdict was not founded upon an acceptance by the defendant at [333]*333his mill in Maine, after the fire, of a part of the wool which had been sent on by railroad.
The instructions given by the court applicable to this aspect of the case were not excepted to, and are not reported. It is to be presumed that they were apt and sufficient, unless the specific instructions requested by the defendant should have been given in whole or in part; and that is the remaining question.
The first two instructions requested were designed to support the statute defence, by avoiding the legal effect of the alleged acceptance, at the mill, of part of the wool. The acceptance referred to is that which the statute requires to give validity to the contract. It must be with intention to perform the whole contract and assert the buyer’s ownership under it, but it is sufficient if it be of part of the goods only. Such an acceptance implies the existence of a completed contract, sufficient to pass the title, which is not to be confounded with that actual transfer of possession necessary to defeat the vendor’s lien or his right of stoppage in transitu, or to show an actual receipt under the statute. Morse v. Sherman, cited above. Browne St. Frauds, § 317.
The first request in all its parts is to be taken together and treated as one; the proposition that delivery of part to the Eastern Railroad Company would not satisfy the statute of frauds, even as to that part, being preliminary only, and for the purpose of leading up to the main proposition in regard to the subsequent acceptance of such part.
The judge properly declined to rule that an acceptance, as thus defined, of part of the wool would not operate to take the contract out of the statute, as to the part which the plaintiff had not sent, although by the terms of the contract the seller was to ship it all by railroad at the defendant’s expense.
In the second request the judge was asked distinctly to rule that an acceptance of part of the wool would not operate upon the contract to render it valid retrospectively, or make the defendant liable to pay for that which had been destroyed by fire. This presents the question whether the date of the acceptance or the date of the agreement will be treated, as between the parties, as the time when the contract was made, and the risk of loss of the goods was cast on the buyer. No direct adjudication of this precise point is cited, if we except a New York case in which it [334]*334seems to be held, in a per curiam opinion, that a loss which happens after the original agreement and before the acceptance required by the statute, must fall on the purchaser. Vincent v. Germond, 11 Johns. 283.
The decision of it depends upon the construction to be given to that part of the statute applicable to sales of personal property, which is incorporated in the Gen. Sts. c. 105, § 5, and follows, with slight variation, the words of the seventeenth section of the English statute.
The purpose of this celebrated enactment, as declared in the preamble and gathered from all its provisions, is to prevent fraud and falsehood, by requiring a party, who seeks to enforce an oral contract in court, to produce, as. additional evidence, some written memorandum signed by the party sought to be charged, or proof of some act confirmatory of the contract relied on. It does not prohibit such contract. It does not declare that it shall be void or illegal, unless certain formalities are observed. If executed, the effect of its performance on the rights of the parties is not changed, and the consideration may be recovered. Stone v. Dennison, 13 Pick. 1. Basford v. Pearson, 9 Allen, 387. Nutting v. Dickinson, 8 Allen, 540. The memorandum required is the memorandum of only one of the parties; the alternative acts of the seventeenth section proceed from one only; they presuppose a contract, and are in affirmance or partial execution of it; they are not essential to its existence ; need not be contemporaneous, and are not prescribed elements in its formation. .It is declared in the fourth section that no action shall be brought upon the promises therein named, unless some memorandum of the agreement shall be in writing; and in the seventeenth that no contract for the sale of goods “ shall be allowed to be good,” or, as in our statute, “ shall be good and valid,” unless the buyer accepts and receives part or gives earnest, or there is some memorandum signed by the parties to be charged, or, as in our statute, by the party to be charged. It is true there is difference in phraseology in these sections; but in view of the policy of the enactment, and the necessity of giving consistency to all its parts, this difference cannot be held to change the force and effect of the two sections. “ Allowed to be good ” means good for the purpose of a recovery under k; and the clause in the last part of the latter section [335]*335which requires the memorandum to be signed by the party or parties to be charged, implies that the validity intended is that which will support an action on the contract. We find no case in which it is distinctly and authoritatively held otherwise. See Leroux v. Brown, 12 C. B. 801; Carrington v. Roots, 2 M. & W. 248; Reade v. Lamb, 6 Exch. 130. Browne St. Frauds, §§ 115, 136.
With reference to the change in our statute by the use of the words “ good and valid,” which first appears in the Rev. Sts. c. 74, § 4, it is enough to say that the provincial statute of 1692, e. 15, § 7, and the St. of 1788, c. 16, § 2, follow the precise words of the English statute; and the commissioners on the Rev. Sts. in their report, p. 107, declare that they intend to retain the well known and familiar phraseology of the old statute, which has received judicial construction. Tisdale v. Harris, 20 Pick, 9, 12. It is apparent that the Legislature of this state did not intend to change the meaning of the original provision.
In carrying out its purpose, the statute only affects the modes of proof as to all contracts within it. If a memorandum or proof of any of the alternative requirements peculiar to the seventeenth section be furnished ; if acceptance and actual receipt of part be shown; then the oral contract, as proved by the other evidence, is established with all the consequences which the common law attaches to it. If it be a completed contract according to common law rules, then, as between the parties at least, the property vests in the purchaser, and a right to the price in the seller, as soon as it is made, subject only to the seller’s lien and right of stoppage in transitu.
Many points decided in the modern cases support by the strongest implication the construction here given. Thus, if one party has signed the memorandum, the contract can be enforced against him, though not against the other, — showing that the promise of the other is not wholly void, because it affords a good and valid consideration to support the promise which by reason of the memorandum may be enforced. Reuss v. Picksley, L. R. 1 Ex. 342.
The memorandum is sufficient if it be only a letter written by the party to his own agent; or an entry or record in his own books; or even if it contain an express repudiation of the con* [336]*336tract. And this because it is evidence of, but does not go to make the contract. Gibson v. Holland, L. R. 1 C. P. 1. Buxton v. Rust, L. R. 7 Ex. 1, 279. Allen v. Bennet, 3 Taunt. 169. Tufts v. Plymouth Gold Mining Co. 14 Allen, 407. Argus Co. v. Albany, 55 N. Y. 495.
A creditor, receiving payment from his debtor, without any direction as to its application, may apply it to a debt upon which no action can be maintained under the statute. Haynes v. Nice, 100 Mass. 327.
The contract is treated as a subsisting valid contract when it comes in question between other parties for purposes other than a recovery upon it. Hence the statute cannot be used to charge a trustee, who may set up against his debt to the principal defendant a verbal promise within the statute to pay the defendant’s debt to another for a greater amount. Cahill v. Bigelow, 18 Pick. 369. And a guarantor may recover of his principal a debt paid upon an unwritten guaranty. Beal v. Brown, 13 Allen, 114.
On the ground that the statute affects the remedy and not the validity of the contract, it has been held that an oral contract, good by the law of the place where made, will not be enforced in the courts of a country where the statute prevails. Leroux v. Brown, 12 C. B. 801. The defendant may always waive its protection, and the court will not interpose the defence. Middlesex Co. v. Osgood, 4 Gray, 447. And, except that the statute provides that no action shall be brought,- there would be no good reason to hold that a memorandum signed, or an act of acceptance proved, at any time before the trial would not be sufficient. Bill v. Bament, 9 M. & W. 36. Tisdale v. Harris, 20 Pick. 9.
In a recent case in the Queen’s Bench, a memorandum in writing made by the defendant, after the goods had been delivered to a carrier and been totally lost at sea while in his hands, was held sufficient to take the case out of the statute, and no notice is taken of the fact that the goods were. not in existence when the memorandum was furnished. Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140.
In the case of Marsh v. Hyde, 3 Gray, 331, relied on by the defendant, although there are some inconsistent expressions in the opinion, the general course of reasoning supports this result. The facts in that case showed a completed sale by oral agreement, [337]*337with an acceptance and receipt of part, which was held, although subsequent in point of time to the original contract, to take the case out of the statute. The point decided is not in conflict with the law here stated.
The case of Stockdale v. Dunlop, 6 M. & W. 224, also fails to sustain the defendant’s ease. That was a sale of goods “ to arrive,” and it was expressly found that by the use of this mercantile term, if the property or the vessel named did not arrive, the buyer would have no right to the goods, and so no present insurable interest in them.
It follows that it would have been erroneous to have given the instructions requested. Upon the point closely allied, namely, what effect, if any, the defendant’s mistake or ignorance of a material fact, such as the destruction of the rest of the wool, would have on the alleged act of acceptance, we are not required by the terms of the request to pass.
The third and last request was also properly refused for the reasons above given. If the property in the wool passed by the terms of the original agreement, and the contract was taken out of the statute by the subsequent acceptance and receipt, then, as we have seen, as between the parties, the risk of loss was on the defendant at the time of the fire, and the plaintiff may recover the agreed price of the whole. Exceptions overruled.