I entirely concur with the supreme court in the opinion pronounced by them in this case. The contract between the parties in this suit, was not made by the broker, but by themselves. It was simply this: the defendants agreed to sell the plaintiffs 8900 boxes of raisins at $1.70 per box, to be paid for in cash on delivery, deducting 3½ per cent for cash payment, the plaintiffs to have the benefit of and to be paid by the defendants, the amount of such return duties as the government should allow the defendants. The raisins were in a damaged state, and the plaintiffs agreed to take them as they were. The declaration alleged the delivery of the raisins, and the defendants made no objection on the trial that they had not been delivered. The proof showed that the price agreed on had been paid by the plaintiffs, and that the defendants had since received $862.51 from the government for return duties which they refused to pay to the plaintiffs. For this amount they recovered a verdict at the trial, upon which judgment was entered, and which the supreme court subsequently affirmed. One of the principal points relied upon by the appellants is, that the contract is within the statute of frauds: that the claim to have the duties returned which had been paid on damaged goods, was a substantial right, and a thing in action within the meaning of the statute, or else it was a mere expected bounty or illegality, which could not be the subject of a valid contract. By reference to the terms of the contract it will be seen, that it virtually formed a part of the price to be paid for the raisins. It seems that the contracting parties contemplated as a very probable contingency, that owing to the damaged state of the raisins return duties would be received from the government, and that the contract was made in view of it; for the plaintiffs while *Page 545 negotiating with the defendants, and agreeing on a price, inquired of the defendants if any return duties had been received, and being answered in the negative, asked if any should be received, if they should have the benefit of them; and the defendant said they should. Here then was an agreement that a reduction of the return duties should be made out of the price stipulated to be paid, for how else could the plaintiffs reap the benefit of the return duties? Had the government paid over the return duties at the time the contract price was paid by the plaintiffs, can it be pretended that the plaintiffs could not have insisted upon having that amount deducted at the time? What difference then could it make if they were afterwards received, even if the contract price had been all paid? They would be moneys received by the defendants to plaintiffs' use, which the defendants were legally and equitably bound by the contract to pay over to the plaintiffs. When they were received, so far as the case discloses, the plaintiffs had performed all their part of the contract: they had paid the full amount stipulated to be paid for the raisins: the defendants had performed theirs in part, the delivery of the raisins, but had failed to perform the other part of the contract, to wit, the payment to the plaintiffs of the return duties received by them of the government. The statute of frauds (as was observed by the supreme court) does not apply where the goods have all been delivered. That made the contract binding, and the defendants were then bound to perform the whole contract, that of paying over to the plaintiffs the return duties. It is hardly worth while to discuss here what the nature of "return duties" are, it is enough that they formed a substantial part of the contract between the parties, and that part was as much obligatory upon them as any other part. The case cited by the appellants' counsel on the argument, that ofMunsell v. Lewis (2 Denio, 224), in which one of the members of this court delivered the leading opinion in the court of errors, is directly against him upon this point. In that case, Lewis and another had taken a canal contract, and after part performing it assigned their interest in it to Munsell, by which Munsell was to receive the pay from the canal commissioners *Page 546 for completing the work according to the contract made by Lewis with the commissioners. Subsequently, and after Munsell had received his pay for completing his contract, a statute was passed allowing extra compensation to the contractors on that canal, and under this statute Lewis received $300 from the canal commissioners. For this amount Munsell brought a suit against Lewis, claiming that he was entitled to it under the assignment made to him of the contract. The same doctrine contended for in this case was urged in that, and the supreme court sanctioned it by refusing to set aside the nonsuit which had, been granted at the circuit, but the court of errors reversed the decision of the supreme court. That was a much stronger case than this. There it was made a strong point, that by the terms of the assignment Munsell was only to receive the amount stipulated to be paid by the original contract with the canal commissioners, all of which had been paid him. Here it was expressly agreed that the plaintiffs should have the benefit of the return duties for which he has recovered.
The other objections I forbear to notice, as they have no foundation in fact on which to rest, and were so held by the supreme court. The judgment of the supreme court should be affirmed.
Judgment affirmed. *Page 547