1. The part payment required by the statute of frauds, in order to make the contract for the sale of goods of the value of over $40. binding on the parties, does not require the actual passing of money from the vendee to the vendor. But it must be of value— money’s worth — and it must be agreed by both parties at the time that the value is then actually passed from the vendee to the vendor —that it is a then present payment. It is not enough for the parties to agree that it shall he applied as payment. That would be merely an agreement to pay. It must not rest in agreement, — it must be pay down. The payment must be actually made and both parties must so understand it; — the vendee that he pays and the vendor that he receives the value, and thus that the title to the value has passed from the vendee to the vendor.
In Walker v. Mussey, 16 Mees. & Wels. 302, it was verbally agreed that the debt that the vendee owed the vendor of four pounds “should go in part payment ” to the vendor for the leather. This was an agreement to apply the amount in payment — but it was not payment. As Parke, Baron, says, “ no evidence was given of the actual payment or discharge of the debt — all rested in agreement merely. If the contract had been that the parties were to be put in the same situation at that time as if the plaintiff’s debt to the defendant had then been paid, the statute might have been satisfied without any money having passed in fact.”
Archer v. Zeh, 5 Hill, 200, stands on the same ground. Zeh agreed he would credit or indorse on the note the amount Archer would promise to pay ; but the court held this did not extinguish the debt from McDuffie to Zeh and was not a payment, or an agreement for absolute credit. Judge Cowen’s remark that “ even if there had been an agreement for absolute credit, I should doubt whether the statute would be satisfied without something more,” was not the statement of the principle of the decision, and must be regarded only as the expression of a doubt by that learned judge. There is nothing in Browne on the statute of Frauds, chap. 16, p. 357, inconsistent with the doctrine which we have here suggested as the true rule of the law.
The statute only requires actual part payment. It does not require that such payment shall be shown by writing — by an indorsement, a *113credit or a receipt, or by the manual delivery of any article or property of value. It leaves the parties to prove payment by such proof as they may have ; — but it does require proof of payment, and not of a mere agreement to pay or to apply in payment.
Applying this principle to this case we find no error in the decisions of the county court. The evidence clearly tended to prove actual part payment at the time the contract for the poultry was made. The case shows that both parties “ treated the $75. as so much already paid upon the price of the poultry — that this was then agreed on as a part payment of the poultry.” And the court held and so charged that the jury must find that both parties then agreed and treated the $75. “ as a then present payment.” If this was found then Hatch & Co.’s liability to the plaintiff for the $75. was extinguished — paid. If Hatch & Co. had refused to deliver the poultry the plaintiff could not have sued them on the contract for the apples to recover the $75.; — but only for the $75. as money paid on the contract for the poultry.
But we do not consider it necessary, even in deciding this case, to hold that a mere antecedent debt agreed to be paid and extinguished at the time and so actually paid, would be part payment so as to satisfy the statute, in the entire absence of any act done to evidence the fact of payment, such as an endorsement, a credit, a receipt, — a giving up of the evidence of the debt. For here the parties settled their unsettled dealings about the apples ; the plaintiff sold those on hand to Hatch & Co.; they agreed upon the price of the whole, (before unsettled,) at $75., and agreed that this should remain in the hands of Hatch & Co. as payment for the poultry. This was something more than a mere agreement as to an antecedent debt — it was a settlement and actual transfer of the title of property already delivered. This in the judgment of a part of the court is an important element in the case, and sufficient alone to determine it.
2. The plaintiff was merely the defendant’s agent in buying the poultry, and was bound only to the duty and liability of an agent. The rule on this point we think was very clearly and properly laid down by the judge in his charge.
The fact that the agent saw fit to become responsible to Hatch & Co. for the amount of the purchase — they being unwilling to trust *114his principal — does not change the relation of the parties. The act in no way interfered with or impaired the principal’s rights. So long as the agent did not see fit to make any claim upon the ground that he had become responsible for the price, but still recognized his agency notwithstanding he had thus become liable, it was not for the defendant to claim that such a voluntary favor for his benefit should change their relation and make the plaintiff a purchaser from Hatch & Co., and a vendor to him.
The judgment is affirmed.