The opinion of the court was delivered by
Bennett, J.It is claimed by the defendant that there can be no recovery by the plaintiff, because of the statute for the prevention of frauds and perjuries, (Comp. Stat. chap. 64,) but as applied to the facts of this case, the objection cannot be sustained. The only controversy is in relation to the sheep. The ox-yoke had been specifically paid for. The sheep as well as the ox-yoke were sold at public auction, and the defendant bid them off at the prices charged in the plaintiff’s account. The plaintiff employed Boberts as his auctioneer, and^he plaintiff and the auctioneer employed one Gray, as a clerk, to keep an account and record of the sales. The articles bid off by the defendant were entered to him by the clerk, at the time, iñ a book in which he kept the sales, and they were not only struck off to the defendant with his knowledge, but also entered to him by the clerk, and to all this he made no objection. The sheep were by the parties put into a yard by themselves; and before the defendant left, for the reasons assigned in the report, he engaged the plaintiff to keep the sheep for him until the following Saturday. We apprehend there was such a delivery of the sheep as to take the case out of the statute. Not only the title passed to the vendee, but also the possession of the sheep. The vendor became the bailee of the vendee, and his possession, by means of the agreement, became the possession of the vendee, and the sheep were entirely at his risk, and were to be maintained at his expense. If the purchaser shall accept and receive part of the goods sold, in the language of the statute, the case is not *805■within, it. See Comp. Stat. chap. 64, § 2. The same form of expres-* sion is used in the 17th section of the English statute of Charles II. of frauds and perjuries, except the word “ actually” is inserted before receive, and the decisions under that section are of course applicable to us.
It may seem, perhaps, a ljtfcle difficult to ree®iiéile all the cases Which have beeiu-decided under the English statute in regard to What shall constitute a delivery and what an acceptance, so as to take the case out of the 17th section of the statute. In Elmore v Stone, 1 Taunton 457, the plaintiff, who kept a livery stable and dealt in horses, proposed to the defendant to sell him a pair at a given price, but the defendant offered a less price, which was re-rejected, but at length he sent word that the horses were his, and that the plaintiff must keep them at livery for him, and the plaintiff manifested his acceptance to this by removing the horses out of his stable into another stable, and it was held that the plaintiff from that time possessed them 'not as owner, but as the bailee of the vendee, and that after he had consented to keep them at livery for the defendant, he could not have retained them, although he had not been paid the price, and that consequeetly the case Was not within the statute. In that case, according to the views taken by the court, the acts of the parties were such as clearly to place the horses within the power and under the exclusive dominion of the vendee. The case of Howe v. Palmer, 3 B. & A. 321, is decided upon the ground that there was no acceptance of the tares by the vendee. They were sold in market by sample, and though the vendee was to send to the vendor’s farm for the tares, yet he, at the time, refused to receive the sample which was offered him, and requested that the tares might remain where they were until he wanted them, and this was acceded to by the vendor. In that case it was considered that no new relation was created between the vendor and vendee, and the fact that the tares were to remain on the plaintiff’s farm tiff sent for, was a part of the contract. It is said that case differs from Elmore v. Stone, inasmuch ns, in the latter. case, the horses were transferred from the sale to the livery stable, and directed to be kept at the expense of the vendee, which certainly was evidence of acceptance by him. We think the case now before us is one where, from the *806facts found by the auditor, the county court might well have inferred a reception and an acceptance of the sheep by the vendee, which may be regarded, perhaps,, as a mixed question of fact and law. After the sale, the sheep were collected and put into a yard by themselves by the parties, and the vendor was told by the vendee if he would keep them till Saturday of the same week, he-would come then and get them and pay all- bills. This was, in effect, agreed to by the reply made, and the plaintiff has in his account charged for. the keep of the sheep for the two days.
The county court might then have well inferred that the relation of the parties was changed from vendor and vendee, to-that of bailor and baileb, and that consequently the vendee had, in effect, both accepted and received the property in- the language of the exception in the statute. The plaintiff, by agreeing to-keep the sheep upon hire, as the bailee of tbe vendee, waived hi & lien upon them for the price, and they Were exclusively under the dominion óf the vendee. The possession of the sheep after this, by the vendor, was in tbe character of an agent or servant of tbe defendant.
Here can be no ground for tbe defendant to claim a rescisión of the contract. Without considering tbe other point in the case, we' think the judgment should he affirmed.