The opinion of the court was delivered by
TYLER, J.The contract between the plaintiffs and Sterlovski was a parol one for the sale of goods for the price of forty dollars and over, and no part of the price was paid and nothing was given in earnest to bind the bargain ; therefore it was within the statute of frauds and not enforceable unless the goods were accepted and received by the purchaser or his agent.
The defendant’s position, that the goods were accepted and received at Port Henry by the railroad company as a common carrier, acting as the servant and agent of the purchaser, cannot be maintained for the reason that by the terms of the contract the plaintiffs were to deliver the goods at Burlington. The carriers were therefore the agents of the plaintiffs for the transportation of the goods to the place of tljeir destination.
The defendant’s counsel makes the further claim that, when the goods had reached Burlington and been deposited in the carrier’s freight house, the possession of the carrier was the constructive possession of the consignee; that the carrier’s receipt of the goods was a sufficient compliance with the statute, and that the carrier thereafter held them for the consignee. We think, however, that the “express understanding” which the referee finds was had between the plaintiffs and the purchaser, that the latter should pay the freight at Burlington for the plaintiffs, makes the fair and only reasonable construction of the contract to be that the purchaser was personally to receive the prop*150erty on its arrival; that the payment of the freight and the taking of the property Avere to be contemporaneous acts ; that the fact that he was to advance the freight precludes the idea of an implied authority in the carrier to receive the goods for him. As the consignee did not accept and receive them and did no act indicating an intention to do so, but absconded from the State before their arrival, the contract was not relieved from the statute of frauds. Neither the title nor the right of possession ever passed from the plaintiffs.
Judgment reversed and judgment for the plaAntiffs for $196.88, the larger sum named in the report, interest omd costs.