The contract stated in the complaint is, that “ the defendants should sell and deliver to the plaintiffs, within a reasonable time, one hundred barrels of ‘ Canton C. O.’ sugar, equal in quality to a certain lot of sugar last previously sold and delivered by the defendants to the plaintiffs,” and that the plaintiffs should pay therefor at the rate per pound, and within the time, therein specified. The last previous sale referred to was in April preceding. It is essential to the plaintiffs’ right of action, that they prove this allegation; and the verdict of the jury in their favor is conclusive of the proposition that if a valid contract was made by the parties for the purchase and sale of the sugar, such contract is correctly stated in the complaint.
It is undisputed, that the defendants have not, on their *234part, performed any such contract; hence, if they made it, they are liable to respond in damages for the breach of it. If they did not contract, of course there is no breach and no liability. Hence the controlling question in the case is, Did the parties make a valid contract for the purchase and sale of “ Canton C. C.” sugar of the quality or grade specified in the complaint?
The alleged contract is within the scope of the statute of frauds, it being for the sale of goods for the juice of more than fifty dollars, and cannot be upheld unless the requirements of that statute have been complied with. It is not claimed that the plaintiffs paid any part of the purchase money for the sugar at the time the alleged contract was made. Hence, to render the contract valid, it must be made to appear either, 1st. That a note or memorandum of the contract was made in writing, and subscribed by the parties to be charged therewith; or, 2d. That the plaintiffs accepted the sugar. R. S., ch. 101, sec. 3. It is claimed on behalf of the plaintiffs, that both these requirements of the statute were complied with in the present case.
1. We will first consider whether the defendants subscribed any note or memorandum in writing of the alleged contract; for in this cause they are the parties sought to be charged with the contract. If they did so, such note or memorandum must be found, either in the telegrams which passed between them and Brewster, or in their letters to the plaintiffs, written after the latter had rejected the sugar, or in the invoice sent to the plaintiffs. These are all the writings emanating from the defendants and relating to the transaction, which were read in evidence. We think that neither of these writings contains a note or memorandum of the contract alleged in the complaint. Certainly the telegrams do not. Brewster notified the defendants, by telegraph, that he had sold to plaintiffs one hundred barrels of “ Canton C. C.” sugar, and their telegram in reply is merely an approval of the sale and *235a promise to deliver the sugar. There is no mention in these. telegrams of the quality or grade of the sugar, but the standard only is specified. The same is true of the invoice; for only the brand or standard, and not the grade, is mentioned therein. Hence, we need not stop to determine whether the statement of the terms of a contract in an invoice will satisfy the statute, where (as in the present case) the names of the parties to be charged appear thereon only in a printed bill-head; but it would require argument to convince us that such an invoice answers the requirement of the statute, that the note or memorandum of the contract must be subscribed by the party to be charged.
The only contract to which the telegrams and invoice relate, would be performed on the part of the defendants by a delivery of merchantable “ Canton C. C.” sugar; that is, by the delivery of sugar conformable in kind, condition and quality, to what would be understood by the trade from the descriptive term employed. Morehouse v. Comstock, 42 Wis., 626. That the sugar consigned by the defendants to the plaintiffs was merchantable “ Canton C. C.” sugar, that is, of the grade or quality of sugar usually bought and sold in the market by that name, does not seem to be questioned.
The letters of the defendants expressly deny that the defendants made the contract alleged in the complaint. Perhaps these letters contain a sufficient note or memorandum of a contract to sell one hundred barrels of “ Canton C. C.” sugar; but if so, it is a contract to sell by standard, and not by grade — to deliver sugar which shall be up to their usual standard of “Canton C. C.” sugar, not sugar of a better quality or grade. The question was argued, whether letters written by the defendants after the plaintiffs refused to accept the goods, can be resorted to for the purpose of showing a compliance with the provision of the statute under consideration; but we find nothing in those letters which renders it *236necessary to pass upon the question, and it will not be here determined.
We conclude, therefore, that there is no evidence in the case that any note or memorandum in writing of the contract alleged in the complaint, was ever subscribed by the defendants.
2. It remains to determine whether the evidence tends to show such an acceptance of the sugar, by the plaintiffs, as will satisfy the statute and save the contract. The learned counsel for the plaintiffs maintain that the acceptance required by the statute is not necessarily one which will consummate the contract by vesting the purchaser with the ownership of the goods; but that, if the goods are delivered by the seller to the. purchaser as and for a compliance with the parol contract, and are received by the latter, but are afterwards rejected by him and returned to the buyer because they are not of the kind or quality contracted for, that is an acceptance within the meaning of the statute, and renders valid the parol contract, which otherwise would have been void.
On the other hand, the learned counsel for the defendants claim that the acceptance contemplated by the statute must be evidenced by some unequivocal act of the purchaser, beyond the mere receiving of the goods for examination — by some act of ownership of the goods. Por a statement of their position, they quote from the opinion by Weight, J., in Shindler v. Houston, 1 Comst., 269, the following language, which relates to this question of the character of the acceptance required by the statute: “The best considered cases hold that there must be a vesting of the possession of the goods in the vendee as absolute owner, discharged of all lien for the price on the part of the vendor, and an ultimate acceptance and receiving of the property by the vendee, so significant that he shall have precluded himself from taking any exception to the quantum or quality of the goods sold.”
These opposing positions were argued with much ability by *237the respective counsel, and in their briefs they cite numerous cases on the subject. There is much apparent conflict in these cases, and any attempt to reconcile them seems hopeless. To review here any considerable number of them would extend this opinion to an unreasonable length, without serving any useful purpose. It must suffice to say, that we have examined the cases as fully as the time at our disposal for that purpose would permit, and we are satisfied that the conclusions we have reached are sustained by the better reasons, as well as by the weight of authority.
In the present case, there was a delivery of the sugar by the defendants, and a receiving of it by the plaintiffs. Also, it may fairly be assumed, the latter received the sugar with the intention of retaining it if it should prove equal in quality to the April lot. But such delivery and receipt did not constitute the plaintiffs the owners of the sugar — did not transfer the title to them. This could only be done by some unequivocal act of ownership on their part; and the evidence fails to show any such act.
We are thus brought to the question, Can any act of the purchaser of goods by a parol contract, otherwise void by the statute of frauds, amount to an acceptance of the goods which will satisfy the statute and save the contract, unless, by such act, the title to the goods becomes vested in the purchaser? "We think the question must be answered in the negative. To hold otherwise would be to hold that the words “ accept” and “ receive,” as used in the statute, are synonymous. That construction of the statute is rejected by many of the best considered cases, and by the best elementary writers on the subject; and to adopt it would be to perpetuate the evils which the statute was designed to remedy.
Prof. Parsons says: “ The buyer has a right to examine the goods, and ascertain their quality, before he determines whether to accept or not; and a retention by him for a time sufficient for this examination, and no more, is not an acceptance.” *238Mr. Benjamin quotes approvingly from Blackburn on Sales, 22, 23, the following passage: “When the seller gives to the buyer the actual control of the goods, and the buyer accepts such control, he has actually received them. Such a receipt is often evidence of an acceptance, but it is not the same thing. Indeed, the receipt by the buyer may be, and often is, for the express purpose of seeing whether he will accept or not.” These learned authors were there considering the provision of the statute now under consideration. See 3 Parsons on Con. (6th ed.), 44; Benjamin on Sales, § 140, and cases cited.
It is true that acceptance by the buyer may be inferred from a variety of acts on his part. Mr. Benjamin says: “ Constructive acceptance by the buyer may properly be inferred by the jury when he deals with the goods as owner, when he does an act which he has authority to do as owner, but not otherwise; ” and he quotes the language of Erle, J., in Parker v. Wallis, 5 E. & B., 21, as follows: “ If the vendee does any act to the goods, of wrong if he is not the owner of the goods, and of right if he is the owner of the goods, the doing of that act is evidence that he has accepted them ” (§ 145).
In.this case it is manifest that the plaintiffs received the sugar for the express purpose of seeing whether they would accept it or not, holding themselves free to accept or reject; that they refused to accept; and that they did no act in respect to the sugar inconsistent with the continued ownership of the defendants. They insured the consignment and paid the freight in the belief that the sugar consigned was equal in quality to the April lot. Had it been equal thereto, perhaps these would have been acts of ownership; but they cannot reasonably be said to be acts of ownership of sugar inferior in quality to that which they had ordered or contracted for, and which they supposed had been shipped to them. Neither was the plaintiffs’ consent that Mr. Brewster might sell the sugar to other parties, an act of ownership on their part. Such consent was implied in their refusal to accept the sugar, and, *239whether express or implied, was the opposite of an act of ownership. The act was a repudiation of any ownership in .the plaintiffs. And were this doubtful, the doubt is removed by the fact, testified to by one of the plaintiffs, and not denied, that Mr. Brewster resold the sugar at a higher price than the plaintiffs were to pay for it, and offered to pay them the difference, but they declined to receive it or to have anything to do with the resale.
The case of Smith v. Stoller, 26 Wis., 671, has a more direct bearing upon the general question under consideration than any other decided by this court. It was there held that, “ where tea, valued at more than fifty dollars, was sold by sample, and a chest of it delivered to the buyer as in pursuance of the contract, which, after opening it, he undertook to return, it was not error to instruct the jury, in substance, that if he received the tea with intent to accept it in case it should agree with the sample, and if they found that it did in fact agree with the sample, then there was a complete acceptance, and he was liable for the price.” The intention of the buyer to accept if the goods agreed with the sample, concurring with the fact that they did so agree, was held to constitute a complete acceptance. But had the jury found that the tea delivered was not as good as the sample, the plaintiff — the seller — would have been defeated in the action, on the ground that there was no acceptance sufficient to take the contract out of the statute. Of course, the result would have been the same — that is, the action would have been defeated, — had .the buyer sued to recover damages for a breach of the alleged contract by not delivering tea which agreed with the sample.
Smith v. Stoller is, doubtless, an advance from many of the old cases in the direction of the doctrine maintained by counsel for the plaintiffs. But we think it goes as far as the courts can safely go to sustain a constructive acceptance of goods delivered under a parol contract of sale otherwise void by the statute of frauds. We do not perceive how we can go *240farther in that direction, without disregarding the language of the statute and the purposes for which it was enacted.
In the present case, the learned county judge went far beyond the rule of Smith v. Stoller. As we understand his charge, he instructed the jury that if the defendants undertook to comply with the void contract, and shipped the goods to plaintiffs pursuant thereto, and the plaintiffs received the goods with the intention of accepting them, the contract was thereby taken out of the statute of frauds; and he added that, in such case, he “ does not understand that there must be such an acceptance of the goods as would bind the parties receiving them.” There is nothing in the testimony from which it can properly be inferred that the plaintiffs ever intended to accept the sugar, unless it should be of the quality which they claim to have purchased. On the contrary, the conclusion is irresistible that they intended to accept it if as good as the April lot, and to reject it if inferior thereto.
Had the jury been instructed that, if they found the plaintiffs intended to keep the sugar if it proved to be as good as the April lot, then, if it was as good as the April lot, the receipt of it by the plaintiffs was a complete acceptance, which took the contract out of the statute, the instruction would be 'sustained by Smith v. Stoller. Eut such an instruction would have been fatal to the plaintiffs’ case, no matter how the jury might have determined the question of fact. They could not have found a valid contract, unless they found the defendants had complied with its terms, which would defeat the action. Failing to find a valid contract, there was no breach of contract, and consequently no damages could be awarded against the defendants.
"We have assumed, for the purposes of the case, that Mr. Brewster had authority from the defendants to make the contract, as to the quality of the sugar, which the jury found that he made. His authority to do so was denied on the argument, but we do not find it necessary to determine the point.
*241It follows from the foregoing views, that the verdict is against all of the evidence in the case, and hence, that the motion for a new trial should have been granted.
3. There is another view which may be taken of the case, which leads to the same result. If Mr. Brewster acted as a broker in the transaction, in the sense in which that term is employed in the law merchant (and he probably did so act), then, although first employed by the defendants, when the plaintiffs treated with him in respect to the purchase, he became their agent also. Being the agent of both parties, had he made an entry in his books containing the terms of the contract, his signature thereto would satisfy the statute of frauds, it being the signature of the lawful agent of both parties. R. S., ch. 107, sec. 8. It does not appear that any such entry was made. In the absence of such an entry, had he delivered the usual bought and sold notes to the respective parties, signed by him, if they agreed with each other and were received by the parties without objection, that would have been a compliance with the statute. The broker’s telegram to the defendants may be considered a sufficient sold note; but no bought note was delivered to the plaintiffs. Let it be assumed, however (which is most favorable to the plaintiffs), that the broker delivered to them a bought note containing the contract alleged in the complaint and found by the jury. Then we have a case of material variance between the two notes, the one specifying the standard only of the sugar sold, and the other specifying not only the standard, but the specific quality or grade of the sugar purchased.
In a case where the validity of a contract made through a broker depends upon the bought and sold notes, it is well settled that, if there is any material variance between them, they are both nullities, and there is no binding contract. This whole subject is discussed, and the authorities relating to it reviewed, by Mr. Benjamin in his treatise on Sales, §§ 278 et. *242seq. See, also, 1 Pars, on Con. (6th ed.), 541, book III, ch. IV. sec. VII.
In any view we have been able to take of this case, we think the undisputed evidence shows that there was no valid contract between the parties for the purchase and sale of the sugar, and hence, that the judgment against the defendants for damages for the breach of such a contract cannot be sustained.
By the Court.— The judgment of the county court is reversed, and the cause remanded for a new trial.