delivered the opinion of the Court. '
Corbett contracted to purchase from the appellees twenty tons of hay at the price of eight dollars a ton. The hay was contained in several ricks in an open field which belonged to Wolford and his wife, and was occupied by the Ripples as their tenants. The contract was verbal. According to the seventeenth section of the Statute of Frauds, a sale *428of goods and chattels of the value of ten pounds and upwards is not valid, unless the buyer shall accept part of the goods sold and actually receive the same, or give something as earnest to bind the bargain or in part payment, or some note or memorandum in writing be made and signed, &c. Nothing was given as earnest to bind the bargain, or in part payment, and no note or memorandum in writing was made. Corbett was sued by the appellees for the price of the hay, and j udgment was rendered against him. The evidence tended to prove that shortly after the contract was made, Corbett ordered men who were in his service to go to the place where the hay was standing in ricks and pack it; and that one of his men took some of the hay from the top of one of the ricks and trimmed down the sides; and that in about twenty minutes afterwards all the hay was accidently destroyed by fire.
The question at the trial was whether the title to the hay had vested in Corbett, before it was burnt up. On the prayer of the appellees, the Court granted the following instruction : “ The jury are instructed that if they believe from the évidence that the defendant bought the hay in controversy and directed his hands or employees to bale the same, and said hands took possession of said hay, and by topping the same and cutting down the sides thereof prepared the same for such baling and that such hay was afterwards destroyed by fire, then the jury are instructed that such acts are evidence of the receipt and acceptance by the defendant of the hay in controversy, and their verdict must be for the plaintiffs.”
■ The facts stated if there had been no others in evidence would ha-ve justified the jury in finding a verdict for the plaintiffs. We do not.desire to be unnecessarily critical in considering the form of the instruction. It is well, however, to say, that this Court has, on several occasions, disapproved of this method of putting a case before the jury. Among other authorities we refer to Hurt v. Woodland, 24 Md. 417; Moore v. McDonald, 68 Md. 336; Kennedy v. *429County Commissioners, 69 Md. 71—72. We would not, nevertheless, be willing to reverse the judgment if there were not a more serious objection to this instruction. We will state it. Corbett in his, testimony, says: “ The hay was to have been delivered by the plaintiffs, after I had packed it, to Charlton Station or at the canal landing, which place I was to determine after it had been packed, and then the money was to be paid.” This testimony was entirely excluded from the consideration of the jury by the Court’s instruction. It tended to show that by the terms of the bargain, Corbett was not to accept the hay until it was conveyed by the plaintiffs “ to Charlton Station, or the canal landing,” and if believed by the jury it was competent for them to find that what occurred at the hay-rick was merely in preparation for the packing which Corbett was to do, in order that the plaintiffs might deliver it to him at the appointed place. Whatever might be the belief of the jury on this point, they were required to find for the plaintiff, provided they believed the facts hypothetically stated in the instruction. When it is stated in a prayer that the plaintiff is entitled to recover, provided the jury find certain enumerated facts, it has been uniformly held that the effect of the prayer is to withdraw from the jury all other facts than those mentioned. It was so declared in Riggin v. Patapsco Insurance Company, 7 Harris & Johnson, 280; and also in Bosley v. Chesapeake Insurance Company, 3 Gill & Johnson, 462; Adams v. Capron, 21 Md. 205; Haines v. Epply & Pearce, 41 Md. 234, and in every other case where the question has been raised. If the jury would be justified in drawing from the facts excluded from the prayer a conclusion different from that which the prayer requires them to find, it is a manifest corrollary from the ruling just mentioned that it would be error to grant such a prayer. The cases just cited maintain this position.
It was held in Belt v. Marriott, 9 Gill, 335, that “ in order to satisfy the Statute (of Frauds) there must be a delivery of the goods with intent to vest the right of possession in the *430vendee, and there must be an actual acceptance by the latter, with intent-to take possession as owner.” And this doctrine is fully sustained by the authorities. The facts excluded from the instruction tended to the inference that the acceptance of the hay by Corbett was to take place when it was delivered at Charlton Station or at the canal landing. Of course, the jury may have refused to draw this inference, and they may have concluded that the other testimony in the cause proved that the purpose to deliver the hay at one of the places named had been changed;, or they may have refused to believe the testimony altogether. But it was certainly their province to consider it, and to form their opinion upon it. Their verdict ought to be founded on all the facts in evidence which bear on the matter in controversy and they must be submitted to their finding, unless they are admitted'to be true. For error in withdrawing evidence from them the judgment must be reversed and a new trial ordered.
(Decided December 3rd, 1896).Reversed and new trial awarded.