The complaint herein is framed upon the theory of one contract between the plaintiff and defendants by which the plaintiff agreed to deliver to defendants 10,000 bags of sugar (expected to arrive at the port of New York within a few days after August 3, 1914), in consideration whereof the defendants were to pay therefor at the rate of two and ninerthirtyseconds cents per pound, cost and freight, and as a part of the same transaction, and in further consideration of such promise on plaintiff’s part, defendants agreed to replace said sugar within a reasonable time thereafter by delivering to the plaintiff an equal amount of sugar (to arrive by steamer to be later designated by the defendants) at the same price of two and nine-thirty-seconds cents per pound, cost and freight, plaintiff agreeing to accept delivery thereof and to pay for the same at that price. It is alleged that the plaintiff caused the 10,000 bags of sugar to be delivered to the defendants on or about August 5, 1914, the date of arrival, for which the defendants paid; that thereafter the same number of bags of sugar were on August 11, 1914, -designated by defendants for delivery to plaintiff, then being en route or about to be shipped by the steamship Vigilancia; that when the steamship arrived on August 17, 1914, the plaintiff demanded the delivery to him of the said sugar, which the defendants refused • to do and repudiated their agreement, although the plaintiff was ready, able and willing to perform the terms of the agreement on his part; all to his damage in the sum of $105,000.
The complaint having been dismissed at the close of the plaintiff’s case, the view of the facts most favorable to him must be taken. Having introduced testimony establishing the cause of action set forth in the complaint, the plaintiff also showed that the transaction in question was not pnique or extraordinary in the "sugar business, but one having a definite trade existence, and known as “switching,” whereby a party having sugar ready for delivery is willing to exchange it for sugar to arrive later, the party with whom he contracts having immediate use for the sugar, and he himself desiring to use the same amount later. By this practice those who need the goods at once are able to get them at a fixed price, mutually *762agreeable, without going'into the market, and the return of a similar amount of goods at the same price is insured. Neither the complaint nor the plaintiff’s testimony tends to establish two independent contracts, one for the sale by the plaintiff to defendants of 10,000 bags of sugar and the other for the sale by defendants to plaintiff of a like amount of sugar; on the contrary, the proof, in my opinion, sustains the plaintiff’s theory that this was one entire contract for the delivery of a certain amount of sugar at a fixed price and for the return of the same amount at the same price. Of this entire contract, there has been part performance by the delivery of the first 10,000 bags of sugar by the plaintiff to defendants and payment therefor by the defendants. This, I think, takes the contract out of the statute and leaves the plaintiff in a- position to recover his damages for its breach by the defendants. In Johnston v. Trash (116 N. Y. 141), Chief Judge Follett begins his opinion by saying: “An oral contract, by which a person sells his own chattels or choses in action for more than $50, payment and delivery being- made, and agi’ees to take them back from and repay the purchase-price to the purchaser on demand, is an entire contract, and the promise to take back the property and repay the purchase-price is not void by the third section of the Statute of Frauds.* (Wooster v. Sage, 67 N. Y. 67; Fitzpatrick v. Wpodruff, 96 id. 561; White v. Knapp, 47 Barb. 549; Williams v. Burgess, 10 A. &E. 499; Fay v. Wheeler, 44 Vt. 292; Dickinson v. Dickinson, 29 Conn. 600; 1 Benj. on Sales [Cor-bin’s ed.], § 169.)” While later on in the opinion he holds that the oral contract of the defendants in that case—that they would purchase bonds for the plaintiff in the market at the market rates, and in case he thereafter became dissatisfied with them they would, on demand, take them off his hands at what they cost him — was a single contract, and the promise of the defendants to so take such bonds was not a contract for the sale of goods hut a provision for the rescission of the entire contract, still he in no way qualified what' he said at the outset of his opinion. Nor-, as it seems to me, is the application of the principle affected by the fact that the identical goods in the case at bar are not to be taken back, but goods of a precisely *763similar kind and nature are to be returned at the same price. As is said in Williston on Sales (p. 83): “Satisfaction of the
statute by acceptance and actual receipt of part of the goods or by part payment makes the entire bargain of the parties enforceable, even though the bargain contains as a part of it another agreement to sell besides that which has been partly performed. Thus if the seller of goods agree as part of the original bargain to take them back if desired, this agreement to repurchase becomes enforcible by the acceptance and receipt or payment by the buyer. ”
There being evidence from which a jury would have been justified in finding that this transaction was one which had a definite and settled place in the sugar trade, and that it constituted an entire contract which had been partly performed by the delivery and payment for the original 10,000 bags of sugar, I believe the dismissal of the complaint was erroneous and that the judgment appealed from should be reversed, with costs, and a new trial granted.
Laughlin, J., concurred.
Judgment affirmed, with costs.
See 2 R. S. 136, § 3.— [Rep.