By the Court,
Shattuck, J.:Most of the argument in this cause has been directed to the question of the delivery of the sheep. Counsel for the appellant do not, however, abandon the position indicated by the pleadings and bill of exceptions, that this cause falls within the provisions of the Statute of Frauds, relating to contracts which are not to be performed within a year.
Upon, these points we hold in this case that this contract, so far as paying for the sheep was an element, might, by its. very terms, have been performed within the year; and it was within the contemplation of the parties when it was made that such a contingency as Southwell’s, ability to pay and payment in fact within the year, was not only possible j but probable. If so, the casé is not within the statute.
Upon the question of delivery, the counsel insist upon a precise technical separation and counting out of the six hundred sheep, in order to fix any rights of Southwell under the contract. "While the position of counsel may be correct as a general rule, we do not think it controls in this case; for this case had its own peculiar circumstances. The question of delivery was properly left to the jury to say whether, upon the facts in the case, the acts performed by *146the parties were intended by them to operate as a delivery. Upon these points there was no error.
But we think there was error in giving the instruction numbered “second,” of those asked by plaintiff’s counsel. That instruction is as follows: “If the jury find that the parties plaintiff and defendant entered into the contract alleged in the complaint, and the defendant failed and refused at any time to carry out the same, the question as to whether or not there was a complete, delivery of the sheep, does not affect the validity of the contract.”
The whole case of the plaintiff rests upon the alleged fact of sale and delivery (in the qualified and peculiar manner set forth) of the sheep, and the fact that 'defendant did deliver them, in the manner intended by the parties, was one to be kept continually in view, and if there was no delivery, such as the parties contemplated, there could be no recovery. We think that this instruction should not have been given. If it did not operate to take away from the consideration of the jury the question of delivery, it no doubt diverted their attention from a due consideration of this important point.
We also think that there was error in the fourth general instruction given by the court. That instruction seemed to submit the question of sale and delivery, in law and in fact, to the jury, and they were told in substance that if they found that there was no sale or delivery in law and in fact, yet if the defendant, by his own acts, led the plaintiff to believe that there was, and he, acting on that belief, so managed his business and so devoted his time as to incur loss, if the sale and delivery were not consummated according to his expectations, he might recover compensation for his expenses and losses.
Upon a different state of facts, or upon a complaint differently framed, that instruction might have been proper, so far as the measure of damages is set forth; but the case before us is predicated entirely upon the theory of a sale and delivery of the sheep, and this instruction, like the one referred to above, we think might have misled the jury, and *147caused them to take a view of the case altogether too general, and one not authorized by the pleadings.
For these reasons, we think the judgment should be reversed and a new trial ordered.