Admitting that the contract for the sale of the oil, when made, was within the statute of frauds, still the facts submitted to the jury and found by them dispose of that question. The question was submitted to them whethei this was a joint purchase for the benefit of Milliken & Co., and Parsons; and if it was delivered on the joint purchase, a receipt by one of the purchasers inured to the benefit of all, and made the contract valid.
The verdict found such to be the fact, and we see no error on this point, either in the charge of the court or the finding of the jury. The evidence fully warranted such finding, and the instruction that receipt of part by Parsons was a delivery to all, was not erroneous. There is nothing in Caulkins v. Hellman (47 N. Y., 449) that conflicts with these views. In that case the merchandise was delivered at a railway station ; and it was held that it must also appear that it was accepted by the purchaser. Ho such distinction can be made where the delivery and acceptance were cotemporaneous acts. The delivery personally to one of the parties was a personal acceptance by that party, and all became bound thereby. The delivery unconditionally of the oil did not change the terms of the contract so as to relieve the defendants from the mode of payment specified at the time of purchase. The only effect of such a delivery was to waive any right to receive payment as a preliminary to passing the title to the property, if the defendants sold it before making payment to a bona fide purchaser. The plaintiffs still had a right to demand the notes, and, in case of refusal, to claim immediate payment. It did not separate the giving of the note from the credit to be allowed if the note was given, so as to deprive the plaintiff of the former and leave him bound by the latter. The giving of the note and the credit were but one act, and could not be separated by any such act.
The question as to the time of delivery of the four barrels was a question of fact for the jury, in passing upon the question whether the sale was on joint account, with whicli we cannot interfere. It was not a matter of right to have the *340answer amended; and the refusal to allow such amendment was an exercise of discretion on his part with which the court will not interfere.'
We see no error in the charge calling for a new trial. The claim to set off the notes indorsed by Chambers Brothers was properly disposed of. It appears that the whole defence was based on an attempt to get possession of the property, and to pay for it in those notes.
There was nothing to warrant such a defence, and no error in the court refusing to charge on that point as requested by t e defendants.
Judgment should be affirmed.