Appleton, C. J.
The plaintiffs replevied some four thousand tons of ice in store at Boothbay, in this State, from the defendant, who is admitted once to have been the owner.
By R. S., c. Ill, § 4, no contract for the sale of any goods, wares or merchandise, for thirty dollars or more shall be valid, unless the purchaser accepts and receives part of the goods * * or some note or memorandum thereof is made and signed by the party to be charged thereby, or by his agent.
The first question presented for consideration, is whether the plaintiffs have acquired any title to the ice in controversy by virtue of any note or memorandum of sale “signed by the party to be charged thereby, or by his .agent ;’v for if not, this suit cannot be maintained unless a receipt or acceptance of the whole or a part is shown.
The defendant, then owning some four thousand tons of ice, on the fifteenth day of July, 1870, called upon Moses G. Leonard, the president of the plaintiff company, at their office in the city of New York, and proposed to sell the company the same. Leonard, in behalf of the plaintiffs, offered the defendant $4.50 per ton for the ice he described, to be delivered on board vessels to be provided by his company during the ensuing summer; the ice to be properly stowed with sufficient dunnage on board vessels, at defendant’s expense ; and to be weighed on delivery into vessels; the plaintiffs to pay for it on receipt of sight drafts, accompanied by bills of lading. The defendant wanted time in which to accept or reject this proposition, and a week was given. He then desired it to be put in writing, which was declined. The parties then separated.
June 17, 1870, the defendant sent the following telegram, which was received on the same day at New York by the president of. the plaintiff company.
“Gloucester, Mass., June 17, 1870.
To M. G. Leonard, President of Washington lee Company,,, New York City, No. 393 and 395 Canal St.
You shall have my ice for your offer. Write me..
NATH’L. WEBSTER.?’’
[356]*356The dispatch refers only to a verbal offer. It does not describe the price or the quantity of the goods to be sold, nor contain any of the elements of a sale. It leaves the whole contract, whatever it was, to be established by parol evidence. It is clearly within the Statute of Frauds. Waterman v. Meigs, 4 Cush., 497; Jenness v. Mount Hope Iron Company, 53 Maine, 20.
On the same day, June 17,1870, Leonard answered the defend-, ant’s telegram, substantially as follows :
“Tour telegram accepting our offer is received. I will send a memorandum of the offer to-morrow.”
On the next day he sent the following letter:
“General Office of Washington Ice Company, 393 and 395 Canal Street.
New York, June 18, 1870.
Dear Sir : I inclose to-day the form of contract for ice purchased, &c. You will examine, and if found correct, you will sign, and inclose one copy by mail to us; filling the blank, which, as you will perceive, is descriptive and not essential to the main question.
Yery truly yours,
M. G. Leonard, President.”
Nathaniel Webster, Esq.
The form of the contract forwarded in the preceding letter was as follows:
“Memorandum of Sale.
Nathaniel Webster, of Gloucester, Maine, has sold to the Washington Ice Company, of the city of New York, all the good and merchantable shipping ice of the said Webster, consisting of about four thousand tons, more or less, being the same now housed in good and proper order, and condition on the shore of at in the State of Maine, referred to in an interview heretofore had by the said Webster with the president of said Company to be delivered by said Webster and properly stowed with .sufficient dunnage at his expense on board vessels to be provided *by the said company at the dock nearest to where said ice is stored,,, .during the present summer, at the following prices to be paid by [357]*357said company by sight drafts, on receipt by them of bill of lading of each cargo, viz: Four dollars and fifty cents for each and every ton thereof weighed on delivery into the vessel, which prices the said company agree to pay at the time and in the manner specified.
Dated, June, 1870.
(Internal Revenue Stamp, 5 cents.)
This contract was never signed by the defendant.
The letter enclosing this contract was addressed to Nathaniel "Webster, Esq., Gloucester, Maine, and went to New Gloucester, Maine, arriving there on the 19th or 20th of June. On the twenty-second day of June it was forwarded to the defendant at Gloucester, Massachusetts.
The plaintiffs next sent the following telegram:
“New York, June 27,1870.
To Nathaniel Webster, Gloucester, Mass.,
When may we expect a cargo ? Have you received our contract ?
M. G. Leonard.”
To this the defendant being absent, his clerk sent in reply the following despatch:
“Gloucester, Mass., June 27, 1870.
To M. G. Leonard, President of Washington Ice Company, 393 and 395 Canal Street, New York.
Have received contract. Mr. Webster is away. Expect him home to-morrow.
Clerk.”
On the thirtieth day of June, the defendant sent the following letter to the plaintiff:
“Gloucester, Mass., June 30, 1870.
M. G. Leonard, Esq.,
Dear Sir : Your letter and contract was received by me yesterday, June 29. Not hearing from you, I supposed you had purchased the ice you spoke of in our interview of the eastern man, and consequently after waiting one week, I disposed of my ice to other parties. Your letter instead of being directed to [358]*358Gloucester, Mass., was directed to Gloucester, Maine, which may-account for my not receiving it before.
Yours very respectfully,
Nath’l Webster, per 0. H. C.”
On the same day the plaintiffs sent the following letter to the defendant:
“General Oeeice of Washington Ice Company, 393 and 395 Canal Street,
New York, June 30, 1870.
Dear Sir : If it will not be inconvenient to you to forward your ice during the month of July, we should prefer it-at that time, as our greatest sales occur in this month, and as most of our ice comes to us from a distance, we are not always sure of having a full supply on hand. I am aware that you named September as the time of delivery, and we do not demand it at an earlier day, unless it may be just as convenient to you to do. Please let me hear from you in reply. Truly yours,
To Nathaniel Webster, Gloucester, Mass.
The contract of sale to be binding by the Statute of Frauds, must be in writing. Thus far, in the process of the negotiation between the parties, there has been no note or memorandum setting forth the terms of any contract which has been signed “by the ■party to be charged thereby.” The telegram of June 17, referring only to a verbal offer, was not binding any more than a verbal acceptance of a written offer upon the party so verbally •.accepting. Smith v. Gowdy, 8 Allen, 566.
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Appleton, C. J.
The plaintiffs replevied some four thousand tons of ice in store at Boothbay, in this State, from the defendant, who is admitted once to have been the owner.
By R. S., c. Ill, § 4, no contract for the sale of any goods, wares or merchandise, for thirty dollars or more shall be valid, unless the purchaser accepts and receives part of the goods * * or some note or memorandum thereof is made and signed by the party to be charged thereby, or by his agent.
The first question presented for consideration, is whether the plaintiffs have acquired any title to the ice in controversy by virtue of any note or memorandum of sale “signed by the party to be charged thereby, or by his .agent ;’v for if not, this suit cannot be maintained unless a receipt or acceptance of the whole or a part is shown.
The defendant, then owning some four thousand tons of ice, on the fifteenth day of July, 1870, called upon Moses G. Leonard, the president of the plaintiff company, at their office in the city of New York, and proposed to sell the company the same. Leonard, in behalf of the plaintiffs, offered the defendant $4.50 per ton for the ice he described, to be delivered on board vessels to be provided by his company during the ensuing summer; the ice to be properly stowed with sufficient dunnage on board vessels, at defendant’s expense ; and to be weighed on delivery into vessels; the plaintiffs to pay for it on receipt of sight drafts, accompanied by bills of lading. The defendant wanted time in which to accept or reject this proposition, and a week was given. He then desired it to be put in writing, which was declined. The parties then separated.
June 17, 1870, the defendant sent the following telegram, which was received on the same day at New York by the president of. the plaintiff company.
“Gloucester, Mass., June 17, 1870.
To M. G. Leonard, President of Washington lee Company,,, New York City, No. 393 and 395 Canal St.
You shall have my ice for your offer. Write me..
NATH’L. WEBSTER.?’’
[356]*356The dispatch refers only to a verbal offer. It does not describe the price or the quantity of the goods to be sold, nor contain any of the elements of a sale. It leaves the whole contract, whatever it was, to be established by parol evidence. It is clearly within the Statute of Frauds. Waterman v. Meigs, 4 Cush., 497; Jenness v. Mount Hope Iron Company, 53 Maine, 20.
On the same day, June 17,1870, Leonard answered the defend-, ant’s telegram, substantially as follows :
“Tour telegram accepting our offer is received. I will send a memorandum of the offer to-morrow.”
On the next day he sent the following letter:
“General Office of Washington Ice Company, 393 and 395 Canal Street.
New York, June 18, 1870.
Dear Sir : I inclose to-day the form of contract for ice purchased, &c. You will examine, and if found correct, you will sign, and inclose one copy by mail to us; filling the blank, which, as you will perceive, is descriptive and not essential to the main question.
Yery truly yours,
M. G. Leonard, President.”
Nathaniel Webster, Esq.
The form of the contract forwarded in the preceding letter was as follows:
“Memorandum of Sale.
Nathaniel Webster, of Gloucester, Maine, has sold to the Washington Ice Company, of the city of New York, all the good and merchantable shipping ice of the said Webster, consisting of about four thousand tons, more or less, being the same now housed in good and proper order, and condition on the shore of at in the State of Maine, referred to in an interview heretofore had by the said Webster with the president of said Company to be delivered by said Webster and properly stowed with .sufficient dunnage at his expense on board vessels to be provided *by the said company at the dock nearest to where said ice is stored,,, .during the present summer, at the following prices to be paid by [357]*357said company by sight drafts, on receipt by them of bill of lading of each cargo, viz: Four dollars and fifty cents for each and every ton thereof weighed on delivery into the vessel, which prices the said company agree to pay at the time and in the manner specified.
Dated, June, 1870.
(Internal Revenue Stamp, 5 cents.)
This contract was never signed by the defendant.
The letter enclosing this contract was addressed to Nathaniel "Webster, Esq., Gloucester, Maine, and went to New Gloucester, Maine, arriving there on the 19th or 20th of June. On the twenty-second day of June it was forwarded to the defendant at Gloucester, Massachusetts.
The plaintiffs next sent the following telegram:
“New York, June 27,1870.
To Nathaniel Webster, Gloucester, Mass.,
When may we expect a cargo ? Have you received our contract ?
M. G. Leonard.”
To this the defendant being absent, his clerk sent in reply the following despatch:
“Gloucester, Mass., June 27, 1870.
To M. G. Leonard, President of Washington Ice Company, 393 and 395 Canal Street, New York.
Have received contract. Mr. Webster is away. Expect him home to-morrow.
Clerk.”
On the thirtieth day of June, the defendant sent the following letter to the plaintiff:
“Gloucester, Mass., June 30, 1870.
M. G. Leonard, Esq.,
Dear Sir : Your letter and contract was received by me yesterday, June 29. Not hearing from you, I supposed you had purchased the ice you spoke of in our interview of the eastern man, and consequently after waiting one week, I disposed of my ice to other parties. Your letter instead of being directed to [358]*358Gloucester, Mass., was directed to Gloucester, Maine, which may-account for my not receiving it before.
Yours very respectfully,
Nath’l Webster, per 0. H. C.”
On the same day the plaintiffs sent the following letter to the defendant:
“General Oeeice of Washington Ice Company, 393 and 395 Canal Street,
New York, June 30, 1870.
Dear Sir : If it will not be inconvenient to you to forward your ice during the month of July, we should prefer it-at that time, as our greatest sales occur in this month, and as most of our ice comes to us from a distance, we are not always sure of having a full supply on hand. I am aware that you named September as the time of delivery, and we do not demand it at an earlier day, unless it may be just as convenient to you to do. Please let me hear from you in reply. Truly yours,
To Nathaniel Webster, Gloucester, Mass.
The contract of sale to be binding by the Statute of Frauds, must be in writing. Thus far, in the process of the negotiation between the parties, there has been no note or memorandum setting forth the terms of any contract which has been signed “by the ■party to be charged thereby.” The telegram of June 17, referring only to a verbal offer, was not binding any more than a verbal acceptance of a written offer upon the party so verbally •.accepting. Smith v. Gowdy, 8 Allen, 566.
June 18,1870, the plaintiffs sent the form of a contract which “if. found correct,” they desired the defendant to sign. The contract, with its blanks to be filled, left it utterly uncertain to what ice it referred, or where the same was situated. This contract the defendant did not sign, for the reason alleged in his letter, that previous to receiving it, the ice had been sold. As this letter is introduced by the plaintiffs, assuming it true, there could not be a contract passing the title to them, even if it had been signed, for [359]*359the ice had then been sold and they would have purchased with a knowledge of such sale. But howsoever that might be, the plaintiffs’ letter requires the blanks to be filled, and the contract to be signed, having previously thereto declined to reduce their offer to writing. It was the first time the plaintiffs had done anything by which their company might be bound. Until that time they legally were at liberty to take or refuse taking the defendant’s ice. The defendant, too, was in similar condition as to selling. Not being previously bound, it was for the defendant to determine whether he would then become bound by signing the proposed memorandum of sale, or not, and he determined not so to sign. He cannot, be bound by a written contract to which he never became a party.
The memorandum forwarded for signature provided for the delivery of the ice “during the present summer.” By the letter of the president of the plaintiff* company of June 30, the ice was to have been delivered in September. The memorandum, therefore, was variant from the verbal conversation. The defendant, therefore, might rightfully decline signing a written contract, different from the verbal conversation between the parties. Richards v. Porter, 6 B. & C., 437; Hazard v. Day, 14 Allen, 487; Lyman v. Robinson, 14 Allen, 242.
The case of Carter et al. v. Bingham, 32 Up. Can. R., 615, is in point. It was an action for non-delivery of fifteen bales of hops alleged to have been sold by defendant to plaintiffs, the evidence showing that in conversation with one of the plaintiffs about the purchase of hops, defendant said he would sell at twenty cents per pound, and would keep the offer open for a few days. Subsequently, on the 17th of August, plaintiffs telegraphed defendant, “will take 15 to 20 bales good new hops at 20 cents, cash.” On the 21st, defendant replied by telegram, “Your offer accepted Have booked your order for fifteen bales new hops, for delivery when picked.” On the 16th of September, defendant telegraphed: “Hops picked, ready for delivery. Answer back.” On the 21st of September, plaintiffs telegraphed: “Our man will be there [360]*360ready to receive hops early next week and on the 26th of September, “Ship the 15 bales hops to us at Galt to-day, and draw at three days sight;” and on the 27th, “If hops not shipped,.will send team and • money for them to-morrow; answer quick.” On the same day defendant answers: “Cannot have hops.” A tender of the price was subsequently made and refused.
Held, I. That there was no binding contract at any time between the parties, for the defendant’s answer of the 21st of August, was not a simple acceptance of the plaintiffs’ offer of the 17th, but qualified it both as to quality (by leaving out the word good,) and as to time of delivery; and assuming defendants’ telegram of the 16th of September to be a renewal of such acceptance, the plaintiffs’ subsequent telegram did not show an assent to it. In delivering the opinion of the court, Morrison, J., says: “The rule of law I take to be, that an acceptance of a proposition must be a simple and direct affirmation, in order to constitute a contract, and if the party to whom the offer or proposition is made, accepts it adding any condition, with any change of its terms or provisions, which is not altogether immaterial, it is no contract until the party making the offer, consents to the modifications; that there can be no contract which the law will enforce until the parties have agreed upon the same thing in the same sense.” The agreement must be entire — as to the thing sold, its price, the time of delivery, and the terms of payment. In the present case, no su.ch agreement is shown. To the same effect are the cases of Sievewright v. Archibald, 17 Q. B., 103; Gether v. Capper, 14 Q. B., 39; Hamilton v. Terry, 11 C. B., 954.
There are one or two more telegrams introduced, but it is not perceived that they affect in any way the rights of the parties. The result is .that the plaintiffs have failed to make out a sale “by any note or memorandum, signed by the party to be charged thereby.”
It is urged that the plaintiffs have accepted and received the ice. To constitute an acceptance there must, first, be a delivery by the seller with intent to give possession of the goods to the [361]*361purchaser. Here, no act on the part of the defendant is shown, indicating such intention in the slightest degree. The letters and telegrams of the plaintiffs show a claim to the ice, and a desire for its delivery, but to such claim or desire the defendant never acceded.
The taking possession of the ice without, or against, his consent, is not a receipt or acceptance binding him. The forcible seizure of property sold, when the sale is void by the Statute of Frauds, cannot be deemed an acceptance or receipt within its provisions. If it were so, it would be to affirm judicially the rule that might makes right. Nor does the seizure of the ice by this writ of replevin, and a delivery of the same by an officer to the plaintiffs, constitute a statutory receipt, and an acceptance by the purchaser.
The defendant not having signed the memorandum of sale, transmitted for his signature, is not bound thereby. A seizure of the ice by force, or under color of legal process, without payment therefor, is not a receipt or acceptance thereof, within the Statute of Frauds. The plaintiff failing to show a legal title, the nonsuit must stand and a return be ordered. Hoeffner v. Stratton, 57 Maine, 360.
After a careful examination of the cases cited in the elaborate argument of the counsel for the plaintiffs, we think they fail to sustain the plaintiffs’ right to maintain this suit, or to show a title in him to the property replevied.
By R. S., c. 96, § 11, “if it appears that the defendant is entitled to a return of the - goods he shall have judgment and a writ of return accordingly, with damages for the taking and costs.”
When the defendant makes a good title to the goods replevied, he is entitled to damages for the interruption of his possession, the loss of the use of the goods from the time of their replevin till their restoration, and for their deterioration. Whitwell v. Wells, 24 Pick., 34. Actual damages must be proved to entitle the defendant to recover more than nominal damages. “The cases in. which six per cent, upon the value of the goods replevied has been allowed as damages, in analogy to the rule in other cases of unlawful [362]*362detention of property,” observes Hoar, J., in Bartlett v. Bricket, 14 Allen, 62, “will be found to be cases where the defendant was entitled to a return, and where the chattels replevied were merchandise or other property capable of physical use or enjoyment.” The damages, exclusive of the return of the goods or their equivalent in money, as secured by the bond, consists of interest upon the money value of the goods replevied up to the time of the verdict, and any special damages shown to result directly from their taking, in addition to such interest. Stevens v. Tuite, 101 Mass., 328. The damages for detention may exceed the interest upon the value of the property replevied; as in case of the replevin of a horse, or oxen, the defendant would be entitled to the value of their use, or for what their services in use would be worth. As in Dorsey v. Gassaway, 2 Har. & Johns., 102, where negroes were replevied without right, the defendant was held entitled to a sum equivalent to the value of their labor. The damages are to be assessed to the time of the verdict for the defendant, upon the principles adopted in trover, save that the value of the property is not to be included therein.
The measure of damages in trover is the value of the property at the time the right of action accrues with interest thereon. Robinson v. Barrows, 48 Maine, 188; Pierce v. Benjamin, 14 Pick., 356; Kennedy v. Whitwell, 4 Pick., 466. Such is the general rule as recognized in this State and in Massachusetts.
The expenses of procuring teams and appurtenances actually incurred for the purpose of removing ice, which wére rendered useless by the wrongful suing out of the writ of replevin, may enter into and become a portion of the damages.
The damages arising from the possible loss of customers are too indefinite, remote and contingent to become an element of damages. Brannen v. Johnson, 19 Maine, 361.
If the defendant was liable on outstanding contracts which he was obliged to fulfill, it would be easy for him to replace the ice taken, by ice to be purchased, for which he would be obliged to pay only the fair value, which will be precisely what he will leceive.
[363]*363The damages being assessed to the time of the verdict, if the goods replevied are not forthcoming on demand on the writ of return, the defendant in a suit by him on the replevin bond will be entitled to recover as damages, the value of the goods replevied at the date of the demand on the writ of return with interest thereon, the damages and costs assessed in the replevin suit, and interest. Swift v. Barnes, 16 Pick., 194.
The assessment at the trial becomes important principally when the goods are in esse and may be returned on demand upon the writ of return; as, if they are not then assessed and the goods are returned and costs paid, the defendant has no further remedy on his bond. Pettygrove v. Hoyt, 11 Maine, 66.
In this State it has been repeatedly held when there is no return that the damages for the unlawful taking, which may not have been assessed in the replevin suit, may be recovered in a suit upon the bond. In Dillingham v. Smith, 32 Maine, 182, where upon report a nonsuit had been entered without an assessment of damages, Shepley, C. J.,' remarked that he considered damages recoverable in a suit upon the replevin bond.' Subsequently the question came before the court in that case, in 33 Maine, 385, damages were allowed in a suit upon the bond from the time of taking at the rate of six per cent., no other or higher damages being claimed. In Thomas v. Spofford, 46 Maine, 408, the ruling of the court in Smith v. Dillingham, was affirmed and again re-affirmed in Tuck v. Moses, 58 Maine, 461. It seems, therefore, fully settled that in a replevin suit, when damages are not assessed at nisi prius, or where a nonsuit is entered, that the defendant, when the property replevied is not returned, may recover all damages sustained, in a suit upon the replevin bond.
The plaintiff in replevin is bound by his own valuation of the property replevied; not so the defendant, who may show the valuation too low, and in a suit upon the bond recover the actual value of the goods or other property taken wrongfully from his possession. Thomas v. Spofford, 46 Maine, 408.
So, he is bound by his replevin bond to restore the goods in like [364]*364good order and condition as when taken. He is responsible, if judgment is against Mm, for tbe damages or deteriorated condition of the goods wben restored. Berry v. Hoeffner, 56 Maine, 171.
Wben goods not held under legal process are replevied, and after entry of tbe action tbe plaintiff becomes nonsuit and a return is ordered, but tbe goods replevied are not forthcoming on demand, the defendant in a suit on the bond is entitled to recover as damages, tbe value of tbe goods wben taken, and interest thereon from tbe service of tbe writ to tbe time of tbe rendition of judgment. Wood v. Braynard, 9 Pick., 322 ; Thomas v. Spofford, 46 Maine, 408. So, where upon tbe evidence a nonsuit has been ordered, without any assessment of damages, and the goods replevied are not restored upon demand, or on tbe writ of return, the defendant may recover tbe damages sustained, which are to be assessed upon tbe same principle as they would have been if a •verdict bad been rendered wben tbe nonsuit was ordered. Dillingham v. Smith, 30 Maine, 370; Smith v. Dillingham, 33 Maine, 384.
The defendant is entitled to a full indemnity for tbe taking and conversion of bis property without right. Wben, at tbe time of tbe demand on tbe writ of return, tbe goods replevied are not returned, if they shall then be of an increased market value, the defendant is equitably entitled to such increase. The damages in such case may be assessed up to tbe time wben judgment was rendered on nonsuit, as they would have then been by tbe verdict of a jury, if a nonsuit had not been ordered. Then tbe value of tbe goods replevied, or of goods of like description at tbe date of tbe demand on tbe writ of return with interest, with the damages at the time of nonsuit, and cost and interest will constitute the amount tbe defendant will be entitled to recover on bis bond. Tuck v. Moses, 58 Maine, 461.
If tbe market value of tbe goods replevied shall be loss at tbe time of tbe demand on tbe writ of return, than when tbe goods are taken tbe loss must fall on tbe plaintiff by whose wrongful act tbe defendant is deprived of bis property. Besides, tbe plaintiff [365]*365having possession might have sold them, which the defendant could not do. Gordon v. Jenney, 16 Mass., 465.
The parties had a right to have damages assessed up to the time of trial at nisi prius by the jury. The defendant claimed that they should then be assessed. The plaintiff did not. The presiding justice denied to the defendant the right to have his damages assessed. In this he erred.
By the terms of the report if the action is not maintainable the nonsuit is to stand.
The nonsuit is to stand. Judgment for return of the goods replevied. Damages to the time of talcing to be assessed at nisi prius, if the defendant so elect.
Cutting, Dickerson, Daneorth, Virgin and Peters, JJ., concurred.