Stevens v. Stewart , 3 Cal. 140 ( 1853 )

Heydenfeldt, Justice,

delivered the opinion of the court. Wells, Justice, concurred.

The defendant relies on the Statute of Frauds. To avoid this defence the plaintiffs show, that after the parol agreement for the sale of the goods, they delivered to defendant an order upon the master of the vessel for the goods. It appears that upon presenting the order, the defendant was answered that the goods were not ready to be discharged, and would not be for several days, whereupon he abandoned the contract.

It is now insisted by the plaintiffs that the delivery of an order for the goods, was such a delivery as takes the case out of the Statute of Frauds.

Several cases have been cited to show that a delivery of an order is a delivery of the goods. But it seems very certain that it is only so considered where the goods are susceptible of immediate delivery.

There are other cases, w'here no question is raised as to the validity of the contract, or the effect of the Statute of Frauds, where the point to be decided was, as to the kind of delivery which effected a change of property, or completed the execution of the contract.

In many such cases, although the goods cannot be immediately delivered, the delay is implied as one of the stipulations. But where delivery is necessary to make the contract, a symbolic delivery can only be effectual where it can be immediately followed by an actual delivery.

It is urged that the proof in this case shows, that the defendant purchased with the knowledge that the goods were on shipboard, and therefore made the bargain with the implied understanding that they could only be delivered within such reasonable time as it required the vessel to discharge. This would be a good argument, if the contract had been in writing, to prevent the defendant from avoiding it for want of delivery. But the argument itself proves a non-delivery, and there cannot he at the same time a delivery which takes the case out of the statute, and a good legal excuse for non-delivery.

Judgment reversed, with costs.