—It will hardly be claimed that the contract in question is within the statute of frauds. It calls for the delivery of an article to be manufac*32tured (Mead v. Case, 33 Barb. 202, and cases there cited; Donovan v. Willson, 26 Barb. 138).
But even if this were not the case, there was a delivery of a portion of the hides, in pursuance of the verbal agreement of March 28th, 1865, on the day it was made, and the residue in a short time thereafter. The jury have found that there was an acceptance by the defendant, and such finding, upon the evidence offered, must be regarded as conclusive. The subsequent delivery and acceptance of the hides by the defendant was sufficient to take the case out of the statute (McKnight v. Dunlop, 5 N. Y. (1 Seld.) 537; Sale v. Darragh, 2 Hilt. 184; Sprague v. Blake, 20 Wend. 61).
The retaking of the property by the plaintiffs, for the purpose of re-examination as to its quality, was not a rescission of the contract, and the jury have found this to be the fact.
There can be no doubt of the plaintiffs’ right to sell the property, after a refusal by defendant to receive it (Sands v. Taylor, 5 Johns. Rep. 395 ; Bement v. Smith, 15 Wend. 497; Crooks v. Moore, 1 Sand. 297; 2 Parsons on Cont. 453). There does not appear to have been any unfairness about the transaction. The sale was made on a rising market, in the regular course of business, and for full value, and no notice of the same to defendant was necessary (Pollen v. Le Roy, 30 N. Y. 549).
The case was fairly submitted to the jury, and the judgment entered on their verdict should be affirmed, with costs.
Joseph F. Daly, J.—It does not seem to me that there was any rescission of the contract of sale between the parties as to the 5,635 sides of leather in question. The defendant had no right to disaffirm the contract and reject the goods, since it appears, that they were not inferior to the quality agreed to be furnished. The jury found this fact under the charge, and the evidence is sufficient to sustain the finding. The question, therefore, is, was there an agreement between the parties to rescind, or an acquiescence by the plaintiffs in defendant’s rejection of the goods, amounting to rescission?
*33The evidence on the point is, that the plaintiffs, had always told the defendant to send back what was not right, to reject inferior leather, and they would take it hack; that while the leather was in course of delivery, and under date of April 12th, the defendant wrote to the plaintiffs : “ I have examined some of the wax'leather sent in on the last bills, and I notify you thus early that if this is a sample of the lot, I will not receive the leather, but hold it subject to your order.” On April 15th, the defendant again wrote to plaintiffs: “ Of the 5,635 sides wax leather sent me, I have examined sufficient to satisfy me that the leather is not of the quality which you agreed to* furnish me. I, therefore, reject the entire lot, and request you to take it away as early as possible.” The plaintiff" Schultz, who had been absent from the city, found these letters on his return. He wrote under date of April 21st, on behalf of plaintiffs, to the defendant: “ We are in receipt of your two letters of the 12th and 15th. We are, of course, surprised at your statement.' We do not and cannot admit the position you take. But, by your request, we will send and take the leather away. You will, therefore, please deliver the leather, or such portion as you reject, to our cartmen when they call.”' The plaintiffs sent to defendant’s, got the leather, took it to their store, opened and examined it, found it good, and equal in all respects to the best they had manufactured, and tendered it back to defendant. On April 29th, they wrote to defendant, * * * “ We have re-examined the leather referred to in your letters of the 12th and 15th of this month, and are satisfied of the incorrectness of your position,, and we shall insist upon your receiving it according to the agreement. We now offer to return it to you. Please advise us by the bearer, or otherwise, if you will accept it.” On May 1st, the defendant wrote to the plaintiffs, * * *• “As to your examination of the leather rejected by me, and taken away by you, I am sure my course is correct, and shall be governed accordingly.”
It cannot be claimed that the foregoing shows any agreement to rescind the contract of sale of the 5,635 sides. The essence of such an agreement is the same as of all agreements; *34the minds of the parties must meet, there must be perfect acquiescence ; they must consent as fully to the canceling of their contract, -as to the making of it originally. It will hardly be argued that the parties concurred when the letter of plaintiffs of the 21st April expressly says : “ We do not and cannot admit the position you take and it is certain that there is no evidence that plaintiffs admitted the defendant’s rejection to be proper, or agreed to receive the leather back for that reason. What, then, was their object in retaking it? They had stipulated with defendant that he might reject what was of inferior quality, and they would take it back. It is clear that this agreement to take back was conditional upon the goods being of inferior quality. Pursuant to it, the defendant notifies his rejection of the whole 5,635 sides ; pursuant to it the plaintiffs take them back. Under the condition, it is the right of the plaintiffs to be satisfied that the rejection is according to the stipulation; they examine, and find the leather good in all respects. If they have been tricked into taking it back, or if mistake on the part of defendant caused the rejection, are the plaintiffs without remedy ? Clearly not, when the only act which can be construed against them—the taking back the leather—was conditional merely, pursuant to an agreement between them, and usage in their dealings as to rejection of goods. There was no unnecessary delay in the re-examination by plaintiffs; eight days for the examination of 5,635 sides •cannot be deemed unreasonable, and it nowhere appears that the defendant was prejudiced by delay. If the question of intent in the retaking of the goods was a proper one for the jury, it was fully submitted to them, and they found in favor ■of plaintiffs.
The judgment should be affirmed.