Majority
p. 368Bennett against Hull. ALBANY, August, 1813.
Headnote
The 15th section of the .statute of frauds (sess. 10. c. 44.) applies as well to executory as to other contracts. And where an •action was brought for not delivering :00 bushels of ant'to’ a “pro" mise,of which tlhere was no note or raeOTiti»g,“nor earnest, nor delivery, the */aiue of the abóte* szs'doE heui that The action was not maintainableIN ERROR, on certiorari, from a justice’s court. Hull sued Bennett before the justice, for a breach of promise, in not delivering to the plaintiff, on board of his vessel, 100 barrels of apples, whenever the vessel should be ready^to receive them, and the defendant was then to receive payment1 in liquors* &c. out of the plaintiff’s store. It was proved that the plaintiff gave notice to the defendant when the vessel was ready to receive the apples, &c.
The justice gave judgment for the plaintiff, for 25 dollars damages, °
Under the 15th section of our statute of frauds, (sess. 10. c. 44.) and which is the same as the 17th section of the x ' English statute, ho contract for the sale of goods, unless there be a delivery of part, or earnest given, or a note or memorandum ™ writing, is valid. Here is neither; and as the price of the 100 barrels of apples is presumed to have been above 25 dollars, * a a this case was clearly within the statute of frauds. The statute applies as well to executory as to other contracts; and the decisions of the English courts, on this point, in Rondeau v. Wyatt, (2 II. Bl. 63.) and in Cooper v. Elston, (7 Term Rep. 14.) contain the sound and just construction of the statute.
Judgment reversed.