Opinion by HUNT, Ch.J. Thus in the present case, I doubt not that the terms of payment by Calkins and Blanchard could have been modified at the pleasure of the parties, and the original sale would have furnished a sufficient consideration for such agreement. I am of the opinion, however, that a transfer of the lumber by Calkins to Blanchard, after he had bought the lumber and held it for three months in his possession and used a portion of it in his business, does not come within this principle. It is a resale, and not a modification or a rescission of an existing contract. Where the title of the vendor has not been perfected for any reason, where there has not been a perfect delivery, where fraud has occurred, or where the contract in any respect remains executory, the idea of a rescission is quite appropriate. Where the same contract, in its essentials, is altered in its details, we at once appreciate the proposition of a modification. The contract before us does not come within either of these principles. It is a new contract simply. Being satisfied that he cannot pay for the lumber as agreed, Calkins proposes to Blanchard "to buy it back." This language expresses the precise legal idea that the law entertains of the proceeding. Calkins, being the owner, proposes to Blanchard to sell him the lumber, and Blanchard assents to the proposition that he should buy it back. It might have been for the same price paid by Calkins or for a less or a greater price, without affecting the character of the transaction. This is essentially a new contract, and not a rescission or modification of an existing contract. Numerous cases are found in the books where the question of rescission has arisen, and in all of them that I have been able to examine, with the exception of Salte v. Field, 5 Term 210, it appears that the property had never been delivered to the purchaser, or had been re-delivered by the purchaser to the original vendor or his agent. It was thus an executory contract simply, or a completed sale upon the new arrangement. In some cases the question has arisen between the parties themselves, and in others the rights of creditors have intervened, but in each of them it will appear either that no original delivery had been made, or that there had been an actual re-delivery Opinion by GROVER, J. to or for the benefit of the claimant (Sturtevant v. Orser, 24 N. Y. 538; Ash v. Putnam, 1 Hill, 302; Berly v. Taylor, 5 Hill, 577; Atkin v. Barwick, 1 Strange, 165; Salte v. Field, 5 D. & E. 214). In the case last cited, the goods were in the hands of the vendor's agent, from which they had never departed when the vendee assented to their return to the vendor. There was an evident desire in that case to rescue the goods from the hands of the assignees of a bankrupt, and to place them where they honestly belonged. Upon a careful examination of the cases, I am of the opinion that this case must be decided upon the language of the statute relating to contracts generally, and that there was not a sufficient delivery to make the re-sale a valid contract. See also Miller v. Smith, 1 Mason, 437; Chapman v. Searle, 3 Pick. 38. GROVER, J.-Calkins acquired a perfect title to the lumber in question by the sale and delivery of it to him in December, 1856. There is no conflict in the evidence as to these facts. The real question in the case is whether the Plaintiff re-acquired title from Calkins on the 5th of February, 1857, some four days prior to the levy of the execution. That this transaction was not valid as a sale of the lumber by Calkins to the Plaintiff is manifest. Sec. 3, vol. 2, page 195, 3d ed. R. S., enacts that every contract for the sale of any goods, chattels, or things in action for the price of fifty dollars or more, shall be void unless, 1st, a note or memorandum of such contract be made in writing and be subscribed by the parties to be charged thereby; or 2d, unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or 3d, unless the buyer shall at the time pay some part of the purchase-money. None of these requisites were complied with, unless a delivery of the lumber and acceptance by the Plaintiff is to be implied from the fact that the parties, at the time of making the agreement, were at the place where the lumber was and saw it. But that a delivery and acceptance could not be implied from these facts was expressly determined by this Court in Shindler v. Houston, 1 N. Y. 261. That this case was rightly determined has never since been questioned. Opinion by GROVER, J. It is insisted by the counsel for the Appellant, that although the bargain between the Plaintiff and Calkins, viewed as a sale, is void under the statute, yet that the same is effectual as a rescission of the contract of sale from the Plaintiff to Calkins made in December, 1856, and that by such rescission the Plaintiff was reinvested in his original title. To sustain this position several authorities are cited, the earliest of which is Atkin v. Barwick, 1 Strange, 165. In that case Cripp & Co. had ordered goods from the Defendants, who forwarded them pursuant to the order, and charged them in account. After the arrival of the goods, Cripp & Co., finding their affairs in a bad condition, deposited the goods with a third person for the Defendants, and afterwards wrote the Defendants, advising them of the facts. Before the receipt of the letter by the Defendants, a commission of bankruptcy was issued against Cripp & Co. Upon the receipt of the letter, the Defendants assented to the receipt of the goods in their behalf by the third person. The Court held that the title to the goods became reinvested in the Defendants upon their receipt by the third person for them, and assigned as a reason for this judgment that the contract between the Defendants and Cripp & Co. was rescinded by these acts. Although this judgment has been much criticised in subsequent cases (Harman v. Fisher, 1 Cowper, 117; Neate v. Ball, 2 East, 116), yet the rule has been since followed (Smith v. Field, 5th Term, 402), and was applied by this Court in Sturtevant v. Orser, 24 N. Y. 538. In none of the cases, however, was there any question upon the Statute of Frauds, the goods in every instance having been actually delivered by the vendee to a third person for the vendor, the only question being as to the time when title was reacquired by such vendor, whether at the time of the delivery of the goods to the third person, or of the assent thereto by the vendor. It was held that the title vested at the time of the delivery to the third person for the vendor. These cases may well be upheld upon the principle that the subsequent ratification by the vendor of the act of the third person in receiving the goods for him made the act valid from its inception, the ratification relating back to Opinion by GROVER, J. that time. It is a familiar principle that when one assumes as agent for another without authority, a subsequent ratification will render the act valid from its origin. The subsequent ratification, then, by the vendor of the act of the third person, in receiving the goods for him, renders such receipt the same as though the goods were received by the vendor himself; and such delivery of the goods by the purchaser to the vendor, pursuant to an agreement to take them in satisfaction of the debt for the purchase price, or any other debt, would constitute a valid sale of the goods, and the title would vest accordingly. But in the present case there was no delivery of the lumber to the Plaintiff, or to any one for him. The contract as a contract of sale was valid by the statute. The title having wholly passed to Calkins, by the sale to him in December, he could not pass it to the Plaintiff by any act of his short of what was equivalent to a sale. Suppose, instead of giving his note, Calkins had paid cash for the lumber, and the subsequent agreement had been that the Plaintiff should take it and pay him therefor an equivalent in money. It is evident that this would have constituted a sale of the lumber from Calkins to the Plaintiff. It is none the less a sale because the Plaintiff was to pay by surrendering up the note of Calkins, whether such note was given for the original purchase price of the lumber, or anything else. My conclusion is, that when the title has passed to a purchaser of chattels, and there are no facts giving to either party a right to rescind the contract by his own act, without the assent of the other party, any contract between them by which the title is to be passed back to the vendor is within the Statute of Frauds, the same as any other sale of the same property. It is unnecessary to inquire whether the statement upon which the judgment was entered was sufficient as against the creditors of Calkins. The Plaintiff's claim is not in that character. The judgment is clearly valid as to Calkins, and the Plaintiff has no more right to question it than Calkins. The judgment of the Supreme Court, reversing that of the County Court and Justice in favor of the Plaintiff, must be affirm |