It was held, when this case was last before the whole court, that the oral agreement of the defendants to accept the order of Fuller would be valid and not within the statute of frauds, if, at the time of such agreement, the stock had been paid for by Fuller, by the delivery of the iron pipes. It would, in that-case, be merely an agreement to deliver to the plaintiff stock which had been already purchased and paid for by Fuller. Eastern Railroad v. Benedict, 10 Gray, 212.
*292Upon the new trial which was then ordered, it appeared that, at the last time the order was presented to the defendants, and an oral promise to accept and pay it was made by them, iron pipes under the contract, and other articles, had been delivered by Fuller to them, to the amount of $ 6,391.48. The other articles were of small amount and value, and consisted of castings to be used with the pipes, which were delivered, charged and received as if they had been included in the contract.
The question then arises whether the order and its acceptance constitute a contract between the parties, which is divisible. The defendants had in their possession stock in the gas company, which had been purchased and paid for by Fuller, and which they had agreed to deliver to him, or to his order, to the amount of $ 6,391.48. In this state of things, an order drawn by Fuller upon the defendants, directing them to deliver to the plaintiffs stock at par to the amount of $ 7,000, is accepted, and a promise made to deliver the stock accordingly. We think that this contract may be divided, and that the plaintiffs may recover upon it to the extent to which there is a sufficient consideration, and to which the statute of frauds does not interpose a bar. It is true that the order was for the entire sum; and the plaintiffs would not have been obliged, by the agreement with Fuller, to take a partial acceptance or payment. But if no objection is made by the plaintiffs, the defendants may be bound, so far as their engagement creates any legal obligation. In Rand v. Mather, 11 Cush. 1, it was determined that an agreement, which is void in part under the statute of frauds, is not necessarily void in toto; and the true doctrine was declared to be, that “ if any part of an agreement is valid, it will avail pro tanto, though another part of it may be prohibited by statute; provided the statute does not, either expressly or by necessary implication, render the whole void; and provided, furthermore, that the sound part can be separated from the unsound, and be enforced without injustice to the defendant; ” overruling the case of Loomis v. Newhall, 15 Pick. 159.
This order was not a bill of exchange, because it was payable, not in money, but in stock of the gas company. To make *293its acceptance a contract binding the defendants, there must therefore have been a consideration for their contract. The consideration, for the agreement to, deliver to the plaintiff stock belonging to Fuller in their hands upon Fuller’s order, would obviously be the discharge of the obligation to deliver it to Fuller himself. This consideration would not extend beyond the amount of the stock which they held; but to that amount it would be a good consideration; and the agreement, being capable of apportionment, may be enforced to that extent. Atkinson v. Manks, 1 Cow. 707. Parish v. Stone, 14 Pick. 198.
The objection that the stock had never become the property of Fuller, because the pipes which he furnished were defective, and not such as his contract required, cannot prevail, because the defendants had received and used the pipes, and had consented to accept them so far as to agree to deliver the stock.
It was argued for the plaintffs, that the settlement between the defendants and Fuller, which was made subsequently to the acceptance of the order, and in which the defendants retained the whole amount of the seventy shares of stock referred to in the order, was equivalent to a new promise to pay the whole of the order. But this was a transaction between the defendants and Fuller, to which the plaintiffs were not a party.
Judgment for the plaintiffs for $6,391.48, and interest from the date of the writ.