fendant, as representing the Stormont Silver Mining Company, to give to that company and other creditors of Clark and Bothwell the benefit of any surplus there might be after the payment of the amount due to the plaintiff. There is evidence tending to show that thereupon, a suggestion having been made that the defendant should purchase the securities from the plaintiff, it was agreed between them that the plaintiff would sell and the defendant would take them at the price of $18,000, and the next day at 3 o'clock was appointed as the time for a delivery. By way of explanation, and as having a bearing upon other items of evidence in the cause, it is proper to say that the defendant's testimony in denial of the fact of the agreement tends to the point that the proposed purchase by him was not in his individual capacity, but as the representative of the Stormont Silver Mining Company, of which he was one of the trustees, and was made conditional on his procuring the assent thereto of the other trustees. We assume, however, in the further consideration of the case, that the jury were warranted in finding the fact of a verbal agreement of sale as alleged by the plaintiff. The question as thus narrowed is whether there was sufficient evidence to submit to the jury, of a receipt and acceptance by the defendant of the securities sold.

It appears that on July 8, 1882, in pursuance of the appointment made the day previous, the plaintiff handed the securities in question, at the office of the Stormont Silver Mining Company in New York, to Schuyler Van Rensselaer, who was the treasurer of that company, and took from him the following receipt: "OFFICE OF STORMONT SILVER MINING COMPANY, No. 2 NASSAU, COR. OF WALL STREET.

"President, William S. Clark. "Secretary, John R. Both well.

"NEW YORK, July 8, 1882.

"Received of Dr. Rufus P. Lincoln the following certificates of stock on behalf of C. S. Hinchman, and to be delivered to him when he fulfills his contract with Dr. Lincoln to purchase said stocks for $18,000 for

66

Menlo Gold Quartz Co., & order on Wells, Fargo & Co. for 45,000 shares

66

Satemo Gold Quartz

66

N. Y. & Sea Beach R. R. Co.

Also $9,500 in first mortgage bonds of the Battle Mn. & Lewis R. R. Co. "SCHUYLER VAN RENSSELAER.

"Witness: M. W. TYLER."

The defendant was not present. The receipt, signed by Van Rensselaer, and which he gave to the plaintiff, was witnessed by M. W. Tyler, the plaintiff's attorney, and had been prepared by him. The securities mentioned therein are the same with those described in the complaint. For the purpose of proving the authority of Van Rensselaer to receive and receipt for the securities, some correspondence between the parties was put in evidence by the plaintiff, the material parts of which are as follows: On July 21, 1882, Tyler, as attorney for the plaintiff, wrote to the defendant as follows: "I was much disappointed in receiving your letter this afternoon, postponing your appointment with me in re Lincoln negotiation. When Dr. Lincoln accepted your offer of $18,000 for his position in reference to the Bothwell securities, he did so unqualifiedly, without even suggesting a modification of your offer, in the hope that in this way he would expedite a conclusion of the matter, and be

lieving that nothing was open except the delivery of the securities, and the receipt of the price. This was on July 7th. On July 8th, learning from Mr. Van Rensselaer that you had left word with him to receive the securities, Dr. L. called on Mr. Van R., and left with him the securities just as he received them. Now, under these circumstances, Dr. L. feels as if there was nothing left to be done except the payment of the money, and that ought not to take very long. Now, I will do anything to accommodate you in this matter in the way of an appointment. If it is inconvenient for you to see me in New York, if you will appoint an early day, I will meet you in Philadelphia. If you desire anything in particular should be signed or done by Dr. Lincoln in addition to what he has done already in delivering the securities to Mr. Van R., if you will write me what you request, I will prepare it and take it on with me for delivery to you." On the same day the plaintiff wrote to the defendant as follows: "Agreeable to a note from Col. Tyler, I went down town this P. M. to meet you as per appointment, and receive payment for Stormont and other stocks in accordance with your offer. I was especially disappointed, for I had promised to apply this money this week to cancel that which I borrowed when I took up the stock. I hope nothing will prevent your carrying out our arrangement by Monday or Tuesday at the furthest, and I will esteem it a favor if, on receipt of this, you will telegraph me when I shall receive a check for the amount of the consideration." In answer to this, the defendant wrote to the plaintiff from Philadelphia, July 22, 1882, as follows: "DEAR SIR: Your favor of the 21st, as well as Mr. Tyler's, duly received. I did not understand that the negotiation between us was finally concluded, but, as I explained to Mr. Tyler, there were some other questions which would have to be settled before I could act in the matter, on account of my being a trustee. I told Mr. Van Rensselaer that he could receive the Stormont stock held by you for joint account of yourself and Stormont, without requiring you to advance any more money, and that I would arrange with you about it; and he, knowing that I was in negotiation with you, took charge of the whole as handed to him by Mr. Tyler, your counsel. There are several questions which come up in regard to it, and I cannot give you any definite reply until I have conferred with counsel and my co-trustees on the subject. My advice to you is to exchange the Stormont stock for receipts, as a majority have already done, on receipt of this; and if you do so, and not convenient for you to advance the contribution for additional stock, I will see that it is carried until we have an opportunity to fix up the whole matter."

It is further in evidence that a short time after the date of Van Rensselaer's receipt, it was seen by the defendant, but he said or did nothing to repudiate it. Tyler also testifies that on July 20, 1882, he met the defendant, and had this conversation with him: "I said to Mr. Hinchman that I had been looking for him for several days, and that I supposed he knew we had delivered the securities-the Bothwell securities-to Mr. Van Rensselaer, as he had directed; and he said, 'Yes, that was all right;' and I said, 'Well, now, when will you be able to close this matter?' 'Well,' he says, 'I am in a great hurry this morning, but I will come to your office certainly this afternoon or tomorrow afternoon, at three o'clock. You can rely upon my coming and seeing you upon one or the other of those days. The plaintiff also testified that he had an accidental meeting with the defendant at Long Beach about the first of August, 1882. The defendant was in company with his attorney, Mr. Meyer. The interview is stated by the plaintiff as a witness as follows: "I spoke to him. I do not know that he recognized me, for I was not well acquainted with him before, and he introduced me to Mr. Meyer, and he said, This is Dr. Lincoln, from whom I have the Bothwell securities;' and we had some conversation about it, but nothing very definite, although there came up during the conversation a statement that there was some controversy about it. I don't know whether I made the statement, or Mr. Meyer, or Mr. Hinch

man. I remarked that there might be some difference-had heard something about some difference of opinion about it, but that I had none; and I told Mr. Meyer that the idea of turning them over to the Stormont Company was an afterthought of Mr. Hinchman; that I conceded nothing of the kind. I never had." The following letter also is in evidence:

"OFFICE OF STORMONT MINING COMPANY OF UTAH, No. 2 NASSAU, COR. OF WALL ST.

"President, Charles S. Hinchman.

"Secretary and Treasurer, Schuyler Van Rensselaer.

"NEW YORK, August 24, 1882.

"Schuyler Van Rensselaer, Esq., Sec'y and Treas. Stormont S. M. Co., No. 2 Nassau St., N. Y.-DEAR SIR: Dr. Lincoln, through his attorney, Col. M. W. Tyler, having seen fit to disavow the understanding and agreement by which he obtained his position' in carrying the J. R. Bothwell securities in your hands left there by Col. Tyler, after conference with a majority of our trustees, I am instructed to notify you to retain possession of said securities until a court of competent jurisdiction shall direct you what to do with them; I claiming, as trustee, for the benefit of Stormont treasury, an equitable and bona fide interest therein. Please acknowledge safe receipt.

"Yours truly,

CHAS. S. HINCHMAN, Prest. and Trustee S. S. M. Co."

There was some other correspondence between the parties not material to the present point, but nothing further was done until November 16, 1882, when a written demand was made by the plaintiff upon Van Rensselaer for the return of the securities. This demand was read in evidence on the part of the plaintiff. The following is a copy of it:

“To Schuyler Van Rensselaer: As Mr. Charles S. Hinchman refuses to fulfill his contract with Dr. Lincoln to purchase certain securities delivered to you on the eighth day of July, 1882, for Mr. Hinchman, I hereby demand the immediate return of the securities to me, to-wit, certificates for28,400 shares of the Stormont Co.'s stock, or its equivalent.

100

Menlo Gold Quartz Co.'s

66

66

66

66

N. Y. & Sea Beach R. R. Co.'s stock.

$9,500 in first mortgage bonds of the Battle Mountain & Lewis R. R. Co. "Dated New York, November 16, 1882.

"Yours, etc.,

RUFUS P. LINCOLN, "By M. W. TYLER, Attys."

The reply to it by Van Rensselaer, as proven, is as follows:

"NEW YORK, November 20, 1882. "Dr. R. P. Lincoln-SIR: In answer to the demand made upon me through Mr. M. W. Tyler, I beg to say that I hold the securities mentioned therein on behalf of yourself and Mr. C. S. Hinchman, and I have no interest in or claim upon them personally. I have been notified by Mr. Hinchman not to deliver them to you, and for that reason shall not be able to accede to your demand. Any arrangement agreed to by yourself and Mr. Hinchman shall have my prompt acquiescence.

"I am, etc.

S. VAN RENSSELAER,

"Per NASH & KINGSFORD, his Attys."

Nothing further occurred until the bringing of this suit on November 25, 1882. It is conceded by the counsel for the plaintiff that the delivery of the securities in question by the plaintiff to Van Rensselaer was according to the terms of the receipt taken from him at the time, and of itself was not sufficient evidence of a receipt and acceptance by the defendant to satisfy the statute of frauds. The jury were so instructed by the court. In speaking of it in his charge, the judge said: "You will recollect that it recites that the property was to be delivered to Mr. Hinchman (I will simply state the language in substance) when he had performed his contract with Mr. Lincoln;' in other words, it attached a condition. If you find upon the evidence that that was all there was of this transaction, I think it my duty to say, as matter of law, that there was not such delivery as would take the case out of the statute, because, if that were true, if he simply delivered the stock to Mr. Van Rensselaer, to be delivered to Mr. Hinchman, upon the payment of the sum by Mr. Hinchman, it would not be a receipt and acceptance by him; the possession would not be in him; he could exercise no dominion over it until he had performed the act which it was necessary for him to perform in order to obtain the title. To put it more plainly, perhaps the plaintiff would have in that event made Mr. Van Rensselaer his agent, as well as the agent of the defendant." The position of the plaintiff's counsel on this part of the case is stated by him in a printed brief, as follows: "That receipt was put in evidence, not as conclusive of a delivery to Hinchman, but as a fact to be taken into consideration, after the jury had determined the question of defendant's capacity, in connection with his admission that he had given Van Rensselaer some authority in the premises; his admission to Tyler, after he saw the receipt, that the delivery to Van Rensselaer was all right;' his admission at Long Beach that he had the securities, and his direction to Van Rensselaer, on August 24th, not to surrender any of the securities. If the jury should find, as it actually did find, that Hinchman was acting in his individual capacity, and that his claim of a representative capacity, first intimated in his letter of July 22d, was an afterthought and false, then the authority given by him to Van Rensselaer was not the limited authority he said it was, and in view of the admission to Tyler that the delivery was all right,' the admission at Long Beach of possession, and the subsequent assertion of dominion over the securities, it was a fair inference for the jury that Van Rensselaer's authority was a general one to receive the securities for Hinchman. If the jury should so find, then, under the terms of the receipt, the delivery to Van Rensselaer was a delivery to Hinchman, and an acceptance by him, sufficient to satisfy the statute; for nothing remained but for him to pay the purchase price."

In dealing with the question arising on this record, we keep in view the general rule that it is a question for the jury whether, under all the circumstances, the acts which the buyer does or forbears to do amount to a receipt and acceptance, within the terms of the statute of frauds. Bushel v. Wheeler, 15 Q. B. 442; Morton v. Tibbett, Id. 428; Borrowscale v. Bosworth, 99 Mass. 381; Wartman v. Breed, 117 Mass. 18. But where the facts in relation to a contract of sale alleged to be within the statute of frauds are not in dispute, it belongs to the court to determine their legal effect. Shepherd v. Pressey, 32 N. H. 56. And so it is for the court to withhold the facts from the jury when they are not such as can in law warrant finding an acceptance; and this includes cases where, though the court might admit that there was a scintilla of evidence tending to show an acceptance, they would still feel bound to set aside a verdict finding an acceptance on that evidence. Browne, St. Frauds, § 321; Denny v. Williams, 5 Allen, 5; Howard v. Borden, 13 Allen, 299; Pinkham v. Mattox, 53 N. H. 604.

In order to take the contract out of the operation of the statute, it was said by the New York court of appeals, in Marsh v. Rouse, 44 N. Y. 643, that

there must be "acts of such a character as to place the property unequivocally within the power and under the exclusive dominion of the buyer as absolute owner, discharged of all lien for the price." This is adopted in the text of Benj. Sales, (Bennett's 4th Amer. Ed.) § 179, as the language of the decisions in America. In Shindler v. Houston, 1 N. Y. 261, 49 Amer. Dec. 316, GARDINER, J., adopts the language of the court in Phillips v. Bristolli, 2 Barn. & C. 511, "that, to satisfy the statute, there must be a delivery by the vendor, with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter, with the intent of taking possession as owner;" and adds: "This, I apprehend, is the correct rule, and it is obvious that it can only be satisfied by something done subsequent to the sale unequivocally indicating the mutual intentions of the parties. Mere words are not sufficient. Bailey v. Ogden, 3 Johns. 421, 3 Amer. Dec. 509. * * * In a word, the statute of fraudulent conveyances and contracts pronounces these agreements, when made, void, unless the buyer should 'accept and receive some part of the goods.' The language is unequivocal, and demands the action of both parties, for acceptance implies delivery, and there can be no complete delivery without acceptance." In the same case, WRIGHT, J., said: "The acts of the parties must be of such a character as to unequivocally place the property within the power and under the exclusive dominion of the buyer. This is the doctrine of those cases that have carried the principle of constructive delivery to the utmost limit. * * * Where the acts of the buyer are equivocal, and do not lead irresistibly to the conclusion that there has been a transfer and acceptance of the possession, the cases qualify the inferences to be drawn from them, and hold the contract to be within the statute. * * * * I think I may affirm with safety that the doctrine is now clearly settled that there must not only be a delivery by the seller, but an ultimate acceptance of the possession of the goods by the buyer, and that this delivery and acceptance can only be evinced by unequivocal acts independent of the proof of the contract." This case is regarded as a leading authority on the subject in the state of New York, and has been uniformly followed there, and is recognized and supported by the decisions of the highest courts in many other states, as will appear from the note to the case as reported in 49 Amer. Dec. 316, where a large number of them are collected. So, in Remick v. Sandford, 120 Mass. 309, 316, it was said by DEVENS, J., speaking of the distinction between an acceptance which would satisfy the statute, and an acceptance which would show that the goods corresponded with the warranty of the contract, that, "if the buyer accepts the goods as those which he purchased, he may afterwards reject them if they were not what they were warranted to be; but the statute is satisfied. But while such an acceptance satisfies the statute, in order to have that effect, it must be by some unequivocal act done on the part of the buyer with intent to take possession of the goods as owner. The sale must be perfected; and this is to be shown, not by proof of a change of possession only, but of such change with such intent. When it is thus definitely established that the relation of vendor and vendee exists, written evidence of the contract is dispensed with; although the buyer, when the sale is with warranty, may still retain his right to reject the goods if they do not correspond with the warranty. That there has been an acceptance of this character, or that the buyer has conducted himself in regard to the goods as owner, is to be proved by the party setting up the contract."

Mr. Benjamin, in his treatise on Sales, § 187, says: "It will already have been perceived that in many of the cases the test for determining whether there has been an actual receipt by the purchaser has been to inquire whether the vendor has lost his lien. Receipt implies delivery, and it is plain that, so long as vendor has not delivered, there can be no actual receipt by vendee. The subject was placed in a very clear light by HOLROYD, J., in the decision