Whether or not the books were sold to the defendant was a question of fact depending upon contradictory testimony, upon which a finding either for or against the defendant might be sustained. In such a case we do not interfere with the decision of the court below.
It is said, however, that the defendant, before the goods were delivered, notified the plaintiffs that he would not be liable for them. Undoubtedly before delivery in pursuance of the defendant’s order, in a case where the contract is within the Statute of Frauds, the purchaser may decline to complete the purchase, and such refusal discharges him from liability if thereafter the vender still goes on to deliver the goods to the agent.
But the facts proven do not sustain that defence. First, it is uncertain at what time such notice was given. There is contradictory testimony from which it is doubtful whether such conversation related to the first or second application,— and even if it related to the first sale, it was not made until after the books had been delivered to Harper & Brothers, as ordered. A delivery in pursuance of the order, whether at the store of a factor, on board of a vessel, or to the purchaser himself, is a compliance with the order, and is an acceptance on the part of the purchaser, which, whether by him or by his agent, is sufficient to hold him liable. (Outwater v. Dodge, 6 Wend. 397).
I do not see any ground upon which the judgment can be reversed.
Judgment affirmed with costs.