Conceding that the agreement relating to the 5,635 sides ofleather in question was not obnoxious to the provisions of the statute of frauds, the defendant was not liable for the damages which have been assessed against him for the assumed difference between the price he agreed to pay and that realized by the subsequent resale to Johnson and *35Thompson, or upon any evidence establishing any basis for a recovery.
It clearly appears he rejected the leather as not of the quality called for by the contract, that with notice of such rejection, and in compliance with his request, plaintiffs sent by their carman and took the leather away. Their letter on this subject, in reply to those of the defendant rejecting the leather for alleged non-conformity to sample and requesting them to take it away, stated that they were surprised at his statements and did not admit the position he took, and added, “ but by your request, we will send a/nd take the leather. You will therefore please deliver the leather, or such portion as you reject, to our ■carmen when they call.”
Five days after plaintiffs’ carmen had taken away all the •leather, they wrote defendant that they had re-examined it, and were satisfied of the incorrectness of his position, and insisted on •his receiving it according to the agreement, and offered to return it to him.
In his reply, he claimed his course was correct, and stated he would be governed accordingly. Again, on the 8th of June following, they made tender of the same 5,635 sides, which was refused.
In their complaint, plaintiffs allege their resumption of the leather was with the design of examining said leather and ascertaining with certainty its quality. If so, they disclosed no such purpose nor in any way qualified their resumption of the goods, as rejected and in accordance with defendant’s request, except by stating they did not admit the position he took, although they did just what he required.
The answer denied any such qualified resumption, and I cannot discover a scintilla of proof to sustain their assertion that the goods were merely taken for the purpose of re-examination. Such a position could only be sustained by evidence of ■some declaration made at the time, qualifying the character of •their resumption, or upon some proof of a usage or course of ■dealing between the parties evincing such a latent intent.
Hone such was disclosed, nor is any reason suggested why, if a mere re-examination was intended, it could not have been *36made before removal of the goods from defendant’s warehouse,, as had been done on other occasions. In the two other instances of previous rejection of such goods by the defendant,, disclosed by the testimony, to wit, as to 135 sides returned in October, and a lot of 560 returned in January, the 135 and 140 (out of the 560) were sold to other parties, and 420, balance of the latter lot, were resold to defendant.
In most instances (four or five other times) where objections were made, plaintiffs were sent for, “ Mr. Schultz would come down and make it right.” Mr. Schultz testifies, “ I told defendant when we gave him leather inferior to the contract, if he would reject it, we would take it.” “ I told him uniformly to send back what was not right.” “ I examined leather on two or three occasions in defendant’s loft.”
From these extracts from the evidence (which, so far as I can discover, are substantially all affecting this question of latent intent of the parties, as distinguished from the legal import of their acts and correspondence), there can be no pretense that the possession of this property was resumed for mere purpose of re-examination, either in pursuance of any express agreement or understanding, or as implied from well understood course of dealing between the parties.
The rejection of it as not conforming to sample, the acquiescence in and agreement with the request of the vendee to take it back (but not in his assertion that it did not conform to sample), the sending for it and resumption of possession without any intimation of any such intention were unequivocal acts of a complete ■ resumption of the property for any general purpose of their own, whereby they were reinstated in absolute ownership, without prejudice to their right to claim they have made a tender ' of performance.
A vendor, on the unjustifiable refusal of the vendee to accept, has his election either to recognize the rejection and claim as damages the difference in his favor between the market price of the goods at the time of their rejection and that agreed to be paid for them, or he may assume an agency to sell them on account of the vendee. In the exercise of such agency he is only bound to use due care and diligence, and may, in making *37a disposition of the goods, give notice to the vendee of the time and place of sale, and is relieved from responsibility in respect to any inadequacy of price obtained thereon, but without giving such notice he is only liable for the judicious exercise of his authority in making any sale.
But the notice to the vendee as to the character in which he intends to hold or deal with the property, presents a further •consideration material to the rights of the parties beyond such as merely affects the measure of damages arising out of a resale of the goods.
The notice to the vendee of the intention to hold as his agent, affords him a “ locus jpomitentice ” and opportunity to provide against further contingencies, which would not exist if the vendor, upon such rejection, resumed ownership.
If no such notice be given, the retention or sale of the prop-erty by the vendor must, from these considerations, operate as an election to hold it as his own.
The decisions of our courts present several analogous cases, and clearly exhibit the law applicable to these facts.
In Lord v. Kenny (13 Johns. 219), plaintiff had agreed to •sell defendant a horse, and received his note for the price. It was afterwards agreed that the purchaser might, within a reasonable time, return the horse, if in as good condition as when delivered, and receive back his note. Defendant accordingly delivered it back, and plaintiff received it without objection as to its condition, and gave back the note, but afterwards brought an action on the ground the horse was not returned in as good condition as when sold; but the court held that as the deterioration in the value was not on account of any secret injury, and as the plaintiff took back the horse and delivered up the note without objection or reservation as to the condition of the horse, he was concluded by that act, and the contract of sale was thereby rescinded.
In Healy v. Utly (1 Cow. 345), the vendee after delivery of the articles sold, returned them to the vendor, saying he could not pay for them, and the vendor must do the lest he could with them. The vendor resold them, but for less than the original price. It was held, that acceptance of the articles by the vendor *38was a complete rescission of the sale, and he could not be deemed the agent of the vendee in making the resale, or hold him for the difference."
In Coon v. Reed (1 Hilt. 511), the purchaser of a horse with warranty of soundness, after delivery but before payment, refused to complete his purchase, alleging the horse was lame. The seller refusing to take the horse back, and it was sent to a livery stable, from which it was taken by the seller two or three weeks afterwards. It was held, that notwithstanding such refusal, the subsequent taking possession of the horse constituted a rescission of the contract of sale, and no recovery could be had for the loss sustained by the failure of the purchaser to complete the contract. To the same effect is also Collins v. Brooks (in this Court), 20 How. Pr. 321.
The question as to the rights of the parties under the circumstances stated, were distinctly presented on the motion to dismiss the complaint, and exception was taken to the overruling of the objection to a recovery. The plaintiffs also made these 5,635 sides of leather their own by their sale to Johnson & Thompson, without any notice to defendant of their intention to hold or sell them on his account.
In McEachron v. Randles (34 Barb. 301), it was held that the right of the vendor to resell the goods on account of the purchaser, and recover of him the loss by the resale (where there was no express stipulation in the contract of sale, authorizing it) could only be exercised after due notice to him of the-time and place of resale (p. 301).
The Court of Appeals, subsequently, in Pollen v. LeRoy (30 N. Y. 555), held that “ the vendors had a right to dispose of the lead (the property sold) as soon as they could, with due regard to the interest of the vendees, and after having given notice of their intention, and to hold the latter responsible for the difference between the agreed price and the sum realized, together with all expenses necessarily incurred; ” but further notice of the time and place of sale was held unnecessary, and McEachron v. Randles, as far as it so held, was expressly overruled.
The main proposition presented by these cases requiring *39notice by the vendor, where he electa to hold goods on account of the vendee, was previously asserted in Sands v. Taylor, Johns. 395; Bement v. Smith, 15 Wend. 493; Crooks v. Moore, 1 Sand. S. C. 297; Mallory v. Lord, 29 Barb. 465, and, other cases.
In the absence of such notice and his consequent election to-treat the goods as his own, his damages are confined to the difference between their market price on the day of performance and that agreed to be paid (Dey v. Dox, 9 Wend. 129 ; Stanton v. Small, 3 Sand. S. C. 230; Dana v. Fiedler, 12 N. Y. (2 Kern.), 41; Orr v. Bigelow, 14 N. Y. (4 Kern.), 556 ; Sedg. on Dam. 282).
This point was also distinctly presented as a ground for non-suit, and the decision overruling it was excepted to.
The latter agreement between the parties for the delivery of 12,000 sides, under which the 5,635 in controversy were sent to and receipted for by the defendant, was not void under the statute of frauds. It is true, it originated in the written memoranda signed by' the parties in 1864, somewhat in the form of “ bo’t and sold notes ” for a sale of 10,000 sides at 28 cents per pound (3,000 to be delivered at once, at 30 days, and the balance as finished, say 100 to 150 daily), which were so imperfect in describing who were vendors or vendees, that they failed to express intelligently or with certainty any such agreement as the statute required (Wright v. Weeks, 25 N. Y. 153). This contract, then existing only in parol, was subsequently-modified by enlarging it by 5,000 sides to be delivered the 15tihr of April, but such modified agreement, although reduced to writing, was only signed by plaintiffs. Afterwards and about February 24th, when but 4,000 sides had been delivered, the. parties again by parol modified this latter agreement so as to reduce the total amount of leather to be bought and sold, te» 12.000 sides. As applicable to this contract, 6,365 sides in all had been delivered prior to March 29th, which have been fully paid for. The controversy is, as to 5,635, the balance of the 12.000 sides which were delivered on and after March 29th and previous to April 15th, in pursuance and part performance of the subsisting modified parol agreement for the sale and delivery of 12,000 sides.
*40Although there was no- sufficient writing to render it valid in its inception, as a sale of 12,000 sides, the delivery, acceptance and receipt of a part thereof (at least 2,365) and the payment therefor, satisfied the statute (2 R. S. 136, § 3, sub. 2 and 3); and if the claim for these 5,635 sides were otherwise maintainable, the objection taken under the statute of frauds would constitute no .defense.
The acquiescence by the plaintiffs in defendant’s request that they should take away the 5,635 sides (“ without assenting to his position ” that they did not conform to the sample), left them in a position to show thát they had tendered performance .according to the requirements of the contract, and, notwithstanding their subsequent sale of the property, they might recover from defendant damages for his refusal to accept it, estimated "upon its inferior market value, when tendered and rejected, to that he had agreed to pay for it.
The case was, however, tried upon another theory, and with reference to such damages as resulted from the subsequent sale of the property to Johnson & Thompson, in September following.
No proof whatever was given of any difference between the market value of the property, when rejected and taken back, and the' price agreed upon in the contract, and nothing but nominal damages could be allowed.
Under these views there was error in the submission to the ■ jury of the several questions as .to which there was no conflict of evidence: . •
1st. Whether the buyer had accepted the goods.
2d. Whether the plaintiffs had agreed to take the property back.
3d. Whether plaintiffs took back the property for examination.
4th. In the charge to them that the vendee must pay the difference between what the article afterwards sold for and the amount which, by the contract, he agreed to pay for it.
5 th. And without adverting to the necessity of giving notice of an intention by the vendor to hold and sell the property on the vendee’s account, and the charge that the vendee must pay the *41difference between what the article afterwards sold for and the amount which, by the contract, he agreed to pay for it.
The verdict was evidently predicated upon no other evidence than a contract of the price obtained on the sale to Johnson & Thompson, in September following, with that agreed to be paid for fifteen days after delivery.
The judgment should, for these reasons, be reversed, and a new trial ordered, with costs to abide the event.
Judgment affirmed.