The principal question in this case arises upon the charge of the judge to the jury, that the contract for the sale of the animals in question, between the defendant and Blackmer, was void by the statute of frauds.
Assuming, as we must, for the purpose of examining this question, that the version of the transaction given by the defendant in his testimony is the true one, I think the learned judge was mistaken in his view of the law applicable to the case. According to this statement, the price was agreed upon and the property pointed out. Blackmer (the owner) was indebted to the defendant, and it was agreed between them that the defendant should take the animals and credit Blackmer the price agreed upon, upon his books, which the defendant did as soon as he got home, where his books were kept. His residence was about one mile from Blackmer’s, and the credit was entered the same day, and within a very short time after the agreement. This was clearly, I think, a payment of Blackmer’s debt, to the extent of the price agreed upon and credited. It was a complete execution and performance of the contract on the part of the defendant. The contract was by parol, and was not binding until the price agreed upon was paid. The statute declares such a contract void, unless the buyer shall accept and receive the goods, or some part thereof, or shall at the time pay some part of the purchase money. Here the agreement and credit were obviously all one transaction. The time was continued until the credit was given, as the parties evidently contemplated that the defendant was to go to where his books were kept, before entering the credit. It must therefore be regarded as a payment made at the time, within the meaning of the statute. But, were it otherwise in this respect, the moment payment is made, in pursuance of the agreement, the transaction is taken out of the statute, even if it was within *268it before. It may be true that as long as the agreement rested in mere words, Blackmer might have put an end to it by rescission, or giving the defendant notice that he would not be bound or perform on his part. But having waited until the act of giving the credit agreed Upon was' performed, he was bound by the bargain, and could not thereafter treat it as a nullity. The cases of Artcher v. Zeh, (5 Hill, 200;) Clark v. Tucker, (2 Sandf. S. C. Rep. 157;) Ely v. Ormsby, (12 Barb. 570;) and Walker v. Hussey, (16 Mees. & Wels. 301,) hold that where goods are purchased, to be applied in payment of a precedent debt, by indorsement or credit, the payment is not made, within the contemplation of the statute of frauds, until the indorsement is actually made, or the credit given, or the goods are receipted in payment. But these cases all concede that when the agreement is consummated by the act of indorsement, or entry of the credit, according to the agreement, the transaction is no longer within the statute. As long as such a transaction rests in mere words, it is Void, but is valid the moment the act of giving the credit is performed by the buyer.
[Monroe General Term, December 5, 1859.The judgment must therefore be reversed, and a new trial ordered, with costs to abide the event.
T. R. Strong, Welles and Johnson, Justices.]