said he was of opinion that the facts rela*85tive to storage and the delivery of the export entry, were put out of the question, in this case, by the decision of the court in the case of Bailey and Bogert v. Ogden and Ogden, (3 Johns. Rep. 421,) that the only question was, whether the defendant’s acts, relative to the samples, would constitute a delivery in law. It must appear, in all cases of symbolical delivery, that it was the express intention of the parties to make a delivery; that here, as the samples formed no part of the bulk to be paid for, the delivery and acceptance of them would not be a delivery and acceptance of part of the goods sold, within the meaning of the statute. The courts have gone far enough with regard to symbolical delivery, and that class of cases ought not to be extended.(2)
Hoffman and Radcliff, for the plaintiff.
Emmet, for the defendant.
Verdict for the defendant.
The plaintiff seems to have acquiesced in this verdict. It does not appear to have been moved before the supreme court. According to the English decisions, both grounds relied upon by the defendant are decidedly with him. Weighing was necessary in this case, from the terms of the contract, to ascertain the amount to be paid; and the true general rule is, that if any thing remains to be done on the part of the seller, as between him and the buyer, before the article purchased is to be delivered, a complete present right of property has not attached in the buyer. Hanson et al. v. Myers, 6 East. 626. The delivery of a sample is a fair delivery, within the statute, whenever the sample delivered is part of the bulk, and the bulk thereby diminished. Klinitz v. Surrey, 5 Esp. Cases, 267. The reasoning of the plaintiff's counsel is certainly plausible, that the defendant, by laying aside the samples, withdrew the article from the market, which was, therefore, equivalent to a delivery. Symbolical delivery of goods, has, in various cases, been considered a sufficient delivery to satisfy the statute; but to consider the act of *86the defendant, in this case, as a delivery, would certainly be carrying the doctrine of symbolical delivery further than any of the cases would warrant. Symbolical deliveries, which have been deemed sufficient to take a case out of the statute, have generally worn this distinguishing feature, that the vendee has thereby obtained a full control over the article sold. Such are the delivery of the key of the ware-house where the goods are stored. Wilkes V. Ferris, 5 Johns. 335. The delivery of the store-keeper’s receipt for the goods stored, (ib.) a specific designation of the goods as the property of the vendee, by marking them, &c., (vide, 3 Johns, 407, and Robert on Frauds, 174,) a collection of the decisions relative to symbolical delivery. Upon this subject, there is great danger that an extension of the doctrine of symbolical delivery, might amount to a judicial repeal of one of the most important provisions of the statute of frauds, which declares that no sale of goods, &c., for the price of ten pounds and upwards, shall be good, except the buyer shall accept part of the goods so sold, and actually receive the same. Of this danger, the courts have lately been fully aware, and the present opinion upon this subject, is strongly expressed by Kent, C. J., in delivering the opinion of the court, in the case of Bailey and Bogert v. Ogden, 3 Johns. 421. “We do not wish to shake any of the cases, in which the actual delivery required by the statute, has been dispensed with; but those cases have gone far enough; our leaning should be towards the plain meaning of the statute.’’