The question is, whether the contract of exchange made by the parties is within the statute of frauds in regard to the sale of goods (P. S., c. 215, s. 3), and if so, whether the requirements of that statute were complied with so far as to make the contract valid, and give the plaintiff the title to and the right to possession of the horse for which he had bargained. The statute applies to a contract of exchange as well as to a contract of sale. Kuhns v. Gates, 92 Ind. 66; Rutan v. Hinchman, 30 N. J. Law 255; Bro. St. Fr. (4th ed.) s. 293.
The agreement on Saturday was a complete verbal contract for the exchange of horses, but there was no delivery and receipt of the property, no note or memorandum or payment to take the case out of the operation of the statute of frauds, and the contract was not valid. On the next day, Sunday, the defendant received possession as owner of the horse for which he had bargained, and there was then an acceptance and receipt of the horse by him which met the requirements of the statute so as to make the contract binding and capable of being enforced, provided the fact that this was done on Sunday does not render it void on that ground. The delivery and receipt of one of the horses, at least, was essential to the validity of the contract of exchange. The performance of these vital elements of the bargain on Sunday was prohibited by the statute (P. S., c. 271, s. 3) and void. It could not make an otherwise invalid contract valid. Smith v. Foster, 41 N.H. 215.
Judgment for the defendant.
CARPENTER, J., did not sit: the others concurred.