The court below were right upon the evidence in charging the jury, that if the wheat was accepted by the defendant or his agent, they must find for the plaintiff the whole contract price. This was the only question that was at all open for the jury. If there had been no acceptance no action would lie. If there was an acceptance, it was obviously-connected with the special agreement, which fixed a price. It is said that was void by the statute of frauds. Be it so at the time 5 still it was good as a proposition of price, under which the plaintiff avowedly acted, and which the defendant did not revoke. He too, therefore, must be taken to have acted under it in receiving the wheat, unless the law would allow him to mislead the plaintiff by his silence. On a delivery, without any change of terms, even of part, a previous proposition to pay a certain price becomes binding. The part delivery need not by the statute, be made at the time of the contract. An oral agreement may stand for a mutually agreed proposition, and unless revoked, the subsequent acceptance of part of the goods which were the subject of the oral negotiation, will make it binding. The statute does not require that the part acceptance should be *64at the time of the oral contract, though it seems to be otherwise • of earnest money which is to bind the bargain. 2 R. S. 70, § 3. The authorities upon the statute of frauds allow of an oral order at one day ; and an acceptance at another by the defendant or his agent. That completes the contract. Hart v. Sattley, 3 Campb. 528. Vincent v. Germond, 11 Johns. R. 283. The latter case went much upon Chaplin v. Rogers, 1 East, 192, which the court below seem to have followed in their charge. The case before them was much stronger for the plaintiff than Chaplin v. Rogers. The cases of Jennings v. Webster, 7 Cowen, 256, 262, 263, and Outwater v. Dodge, 6 Wendell, 397, 400, are also authorities, that a subsequent Acceptance in whole or in part, under an oral contract, makes it good. These authorities cover the whole ground in question, unless indeed, there was a warranty or some fraud in the defendant. There being an acceptance, as the jury have found, and that being plainly at the agreed price, the question of recoupment for the inferior quality of the goods sold, becomes the same as if the action were brought by the defendant to recover damages. Fraud was not pretended ; and the doctrine of warranty on the sale of goods has been lately so much canvassed by this court and the court of errors, in Hart v. Wright, 17 Wendell, 267, that there is no need of going much into the enquiry in the case at bar, whether there was a warranty express or implied. The court below gave the defendant the full benefit of the doctrine as it was understood by Hart v. Wright, if not more. There was here certainly no implied warranty - and we clearly think no express warranty. It is true that the wheat was by the terms of the agreement, to be merchantable. That is understood of every such contract, even without express terms,, while it is executory. When the party comes under such a contract to deliver an inferior unmerchantable commodity, which lies open to inspection, then is the time for the vendee to take his ground. He must then refuse acceptance3 or at least, so soon as he discovers what the quality of the article is ; and offer to return it. When it is fully accepted, a new rule of construction arises. The executory contract is performed, no *65action lies upon that; and no defence, therefore, can be based upon it; but either must go upon an actual sale and delivery. The declaration on one hand, or notice of defence on the other, can no longer aver a contract to deliver a merchantable article, which had not been done; but only that the vendor had delivered, and upon that delivery had agreed that it was merchantable. The acceptance is an assent that the terms of the executory contract were fulfilled. This distinction was also much considered in Hart v. Wright. Vide 17 Wendell, 277. It reconciles many cases which would otherwise appear to conflict.
It is said that in this case, the plaintiff’s wheat was emptied into a large bin of better quality ; and the defendant could not, therefore, return it; and damages are claimed for the manner of delivery. The plaintiff delivered the wheat at the place designated. It was opened and inspected by the receiver, who did object to its being mixed with the other wheat. Why did he not refuse absolutely to receive it, or direct it to be placed by itself, declining an absolute unqualified acceptance 1 The plaintiff answered, li the defendant has agreed for all my wheat.” It was mixed with the other, by the defendant’s agent, and he afterwards boats it away. It cannot be insisted, after what the jury have found, that it was not accepted by the defendant’s agent, and accepted generally. The defendant adopted all that the receiver had done. He takes and converts the plaintiff’s whole crop, pays him for the main bulk j but absolutely declines paying for a small portion received under the same contract at the same price with the other. We entirely approve of what Lord Ellen-borough, Ch. J. said in Fisher v. Samuda, 1 Campb. 190, 193. There the defendants had ordered beer from the plaintiff, for the purpose of its being shipped to Gibralter. On the arrival of the beer, it was discovered to be unfit; but kept some time before there was any offer to return it. In an action by the vendee upon the executory contract to deliver beer fit to be shipped, and a breach in not delivering such beer, Lord Ellenborough said, 66 It was the duty of the purchaser of any commodity, immediately upon discovering that it was not according to order, and unfit for *66the purpose for which it was intended, to return it to the vendor, or to give him notice to take it back. Here, according to the plaintiff’s own case, he knew certainly in July that the beer was unfit to be sent to Gibralter, and there is no evidence of his having intimated this to the defendants before December, when the season for their exporting it was over, and when they might have lost the opportunity of disposing of it at home. Under these circumstances, the plaintiff must be presumed to have assented to its being of a good quality, and to have acquiesced in the due performance of the contract on the part of the defendants.” In the case at bar, there was much more ; an acceptance and conversion.
The merits being still with the plaintiff, admitting that all had been proved which the defendant below offered, it is not necessary to inquire into the other questions which arose at the trial. As to damage for any wrong done by putting the wheat in the bin with that of a better quality, and thus injuring the plaintiff, such special damages clearly could not have been set off. They were not covered by the notice of set-off, and, indeed, the defendant’s agents are rather the cause of the mischief themselves, in not directing another place for the wheat in question. This is said to have been done without the consent of the defendant. Hot so. If the receivers were not his agents, why did he adopt their acts 1 Campbell was his actual agent. He, too, inspected the wheat in the bin ; and the defendant’s boatmen afterwards took it away. Davis, who was a sub-agent of the defendant,' was present and actually participated in the delivery, without, as he says, inspecting the wheat particularly, though his attention must have been called to its inferior quality. He controlled the place of delivery.
The exceptions were not well taken, and the judgment must be affirmed.