The opinion of the court was delivered by
Peck, J.The jury having found, under the charge of the court, that the car load of potatoes, which the defendant received in February, and subsequently paid for, was received under lhe verbal contract of purchase previously made, it was such part delivery and payment as satisfied the statute of frauds, and took the contract out of the statute as to the entire contract as originally made ; notwithstanding the defendant’s letter of January 27th directing the plaintiffs to make no more purchases. The plaintiffs, however, had no right, after the receipt of that letter, to purchase potatoes, and then recover of the defendant any loss that they sustained on them by frost or rot. Their damages as to such after purchases must be limited to the difference between the price the defendant had agreed to pay the plaintiffs, and what it would cost the plaintiffs to procure and deliver them, having reference only to the price the plaintiffs would or did have to pay for them, and the expense of drawing and delivering them. The charge in this respect was correct. The defendant requested the court to'charge “ that the defendant was not liable under the present declaration for any potatoes purchased after that date,” This request was properly denied by the court. The price of potatoes having *260fallen soon after the contract between the plaintiffs and the defendant was made, the plaintiffs had a right to recover the difference between what it would cost the plaintiffs to procure them, and the price the defendant by his contract was to pay ; and this is in substance the charge on this point as given to the jury.
As to the defendant’s request, that if no time was agreed on within which the defendant was to take away the potatoes, and they were to be delivered in good condition, he would have the whole season to take them, and would not be liable for any damage by freezing or rot in the meantime, we think it should not have been complied with. On this hypothesis the defendant would have a • reasonable time to take the potatoes away, and he would not be liable to any loss or damage accruing to the potatoes by freezing or rot before such reasonable time had elapsed. All that is said in the exceptions in immediate connection with this request, is, that the court decline so to instruct the jury, — to which the defendant excepted. Had the case stopped here, we should have had no trouble in reference to this point. But in another part of the exceptions it is stated that the court, “ against the defendant’s request and exception, told the jury that any loss by freezing or rot, which occurred without the plaintiffs’ fault, by delay which the defendant induced, would be a proper subject of damages on all the potatoes purchased before January 27th.” We all agree that if the potatoes were to be delivered in good condition, and sometime was stipulated within which the defendant was to take them, he would have a reasonable time for that purpose, and would not be liable for loss by freezing or rot that accrued before such reasonable time had elapsed. The charge should have been thus limited on this point. I have been unable to bring my mind to the conclusion that the charge sufficiently conveyed that idea to the jury; although the words, “ by delay which the defendant induced,” might have been understood as a delay subsequent to the time it was the duty of the defendant to have taken the potatoes. But the majority of the court think the charge will bear the construction that obviates this objection, and that there is no error.
Judgment affirmed.