[After stating the facts as above.]—It is not claimed that Mayer & Co. were embarrassed or insolvent at the dates these goods were purchased or ordered, viz., from May 12th to June 5th, 1879. As their circumstances, however, afterwards changed, and they became embarrassed in July and August, 1879, their sending for the goods and obtaining them from plaintiff on August 14th, 1879, without disclosing their condition, and their subsequently making the general assignment of August 20th, 1879, are circumstances warranting the inference, as plaintiff claims, that they intended to defraud him, and to obtain these goods in order to swell the assets, which were to be devoted to paying preferred creditors.
Whether such a fraudulent intent existing in July and August, 1879, and not before, would affect the vendees’ title to these goods, depends upon whether the title passed at the date of the bills or the date of delivery. That question was left to the jury ; the plaintiff having asked the court to charge that the transactions of May and June, not being consummated by the delivery until August, that there was really no sale until the deliveryto which the court answered : “ The sale was not proved.” The defendant excepted to that, and the court said : “ The whole matter is, however, to be taken into consideration by the jury.”
As far as the evidence goes in the case before us, there was no sale at any of the dates which the bills, put in evidence by defendant, bear. The contract was voidunder the Statute of Frauds, for there was no memorandum signed by either party (Justice v. Lang, 42 N. Y. 493; 52 N. Y. 323), no part payment, no delivery or acceptance. There is no evidence to show what was done between vendor and vendee at the dates in May and June, recited in the bills, and there seems to have been no liability incurred by the vendee until the delivery and acceptance on August 14th. The recitals in the bills made out by the vendor that the goods were held subject to the vendees’ order, did not bind the latter. It did not take the case out of the statute for the purchaser to say or agree that the goods might remain on bailment with the vendor. *213Words are not sufficient to make a delivery (Shindler v. Houston, 1 N. Y. 261).
For all that appears in proof, the transaction might have been repudiated by either party up to the actual delivery on August 14th, and that date must therefore be taken as the date of the contract of sale, as well as of the delivery. If the facts in evidence justified a presumption to the contrary, it was for the jury to make the presumption, but it appears that the jury by their verdict found there was no presumption to the contrary.
On the question of fraud, the proof, as already remarked, warranted the inference of the jury that there was an intent to deprive plaintiff of these goods. This question on the facts must always be a question for the jury ; the embarrassed state of Mayer in July and the early part of August, and his general assignment, with preferences, within a week after ordering all these five purchases, are sufficient to sustain the verdict.
There was no error in sustaining the objection to the question put to the witness Rosenbaum : “ State whether, in August, when Mr. Mayer returned, you had made any promises to help Mr. Mayer out with a loan of money ?” (21 Hun, 642) because the question was not so framed as to relate to a time in August prior to the 13th, when these goods were ordered to be delivered. The question permitted an answer as to promises made at any time in August, Mr. Mayer having returned in the middle of July.
The judgment and order appealed from should be affirmed.
Charles P. Daly, Ch. J., and Yah Hoeseh, J., concurred.
Judgment and order affirmed, with costs.