Assumpsit upon an account annexed to recover the price of a mow of 30 tons of hay sold. There is also a count upon the defendant’s check, alleged to have been given in part payment for the hay, and upon which payment was stopped; also, the money counts.
The case comes up on report, and we must settle the facts, as well as the law. The parties disagree about some material matters of fact, but the following is a statement of the facts as we find them. On October 2, 1911, the plaintiff offered to sell the hay to the defendant. A price was agreed upon for the hay delivered, and the defendant agreed to take it at the price. The hay was to be pressed in the plaintiff’s barn and hauled away by the defendant, at his convenience, the plaintiff agreeing to board the pressers at the defendant’s expense. But it was understood that payment for the hay would not be required before the following February. At the same time, but by a separate agreement, the defendant agreed to buy and take the plaintiff’s straw at an agreed price. The same arrangement was made for pressing the straw, as for the hay. The defendant had not seen the hay, but he was familiar with the plaintiff’s farm, and once or twice before had bought hay from it. On October 15, the defendant called at the plaintiff’s house, saw .the hay in the barn, and made some talk about having the plaintiff haul it. Subsequently the defendant hired a man to press the hay. The straw was pressed, and the plaintiff was paid for boarding the pressers. On November 14, the plaintiff, desiring some money to use, asked the defendant for some. The defendant gave him his check for $100, and took his receipt for “one hundred dollars advanced on sale of hay and straw to be delivered.” Concerning this request for money the defendant testified, — “I confess I was a little surprised, and being a nervous man and a little provoked consequently I let him have money. However, I had no excuse to refuse; this was. the first opportunity I had had to secure in a way and make it more emphatic that I had bought the hay, and how I had bought it.”
*345On the very night after the check was given, the, hay was consumed by fire, and on the following day, the defendant, hearing of the fire, stopped payment of the check.
It is well settled that an action cannot be maintained for the price of goods sold, without proof of delivery and acceptance. This case, we think, shows no evidence of delivery, or receipt, actual, constructive, or symbolical. The plaintiff did not deliver the hay; the defendant did not receive it. The hay was bargained to the defendant. It was to stay in the plaintiff’s barn until pressed and hauled away. But the plaintiff did not deliver and the defendant did not receive. It is true that some days after the trade the defendant saw the hay, and the plaintiff says he placed an estimate upon the quantity, and talked about his plans for pressing. But there was no act of delivery or receipt. Everything rested in words. And since an action for the pried cannot be maintained in any event without showing delivery and acceptance, and since there can be no recovery on the check, because of total failure of consideration, the plaintiff cannot maintain this action.
Judgment for the defendant.