Appellee, Ted McDaniel, brought this action against Ira Minton (appellant) to recover damages for an alleged breach of a contract for the sale of cotton.
He alleged in effect that he entered into an oral contract May 14,1946, with appellant whereby appellant sold him twenty-four bales of low grade cotton at eighteen cents a pound, which he (appellee) resold to Little Rock brokers; that appellant failed to live up to the contract and refused to surrender possession of the cotton to him; that he, appellee, “made every effort to buy the cotton at the price defendant (appellant) had agreed to sell it to him, but due to an advance in the cotton market the plaintiff was unable to purchase the cotton at that price and was forced to pay $35.25 extra for each of the twenty-four bales he had sold the brokers in Little Rock.” That as-a result he was damaged in the sum of $846 on account of appellant’s failure to live up to the contract.
*593Appellant interposed a general denial and affirmatively pleaded the Statute of Frauds as a defense.
From a jury’s verdict in the amount of $846 in favor of appellee comes this appeal.
Appellant admitted that he sold not a part, but all of the twenty-four bales of cotton involved here to appellee on an oral contract at eighteen cents per pound, but contends that he never made such delivery of any part of the cotton to appellee as would take the contract of purchase out of the Statute of Frauds (§ 6061 of Pope’s Digest), and therefore that the contract was unenforcible. This was the real issue in the case.
The facts upon which the suit was based were to the following effect. Appellee testified that he had been in the cotton business since 1929. Mr. Minton had 24 bales of low grade cotton he had been trying to buy for some weeks, so he went by to see him and told him he thought he could get eighteen cents for it and they agreed on that price; that they went out to his gin and got the samples which appellee took with him and. sold it, and came back and gave appellant instructions where to ship it. Appellee took the samples to Little Rock and sold the cotton to Rauch & Turner, and came back and told appellant, he could ship it to either Hope or Little Rock, but Hope was preferred, and he could draw on him at Arkadelphia with compress receipts attached, and appellant agreed. He waited about two weeks, but the draft didn’t come in and he stopped by to see Mr. Minton. “Q. Every time you stopped, was he still going to let you have it? A. Yes, sir, as soon as it got dry. Q. There was no argument about the contract? A. No, sir, and it goes on somewhere about, I would say 30 days, maybe six weeks, after that and I stopped by and Mr. Minton wasn’t there and one of the ladies or the boy there told me they carried a truckload — I don’t know whether it was all of it or how many bales, but they were delivering the cotton that day. Q. That was the cotton you had bought? A. Yes, sir. Q. That was at the Hope Compress according to your contract? A. Yes, sir, and a week or two after that, he still *594hadn’t drawn on me for the cotton and I stopped by again and Mr. Minton told me he had carried a truckload of the cotton down there — anywhere from five to ten bales— five, six or seven bales of the cotton and then they run into wet cotton and the Compress wanted to dock him so much for it, he didn’t feel like putting it in and being docked so much for it, he didn’t bring the balance down there, and I said, Mr. Minton, I would put it all under the shed, the ginning season is all over with, and I would put it inside the gin house. I told him I would put it under the shed and let it dry out. Q. Did he do that? A. Yes, sir. Q. That was the cotton you had bought? A. Yes, -it was the cotton I had bought — that is all that he had at the gin. He had delivered five or six or seven bales of it.”
Appellant testified: “Q. They did accept five or six bales? A. For me, yes, sir. Q. That was cotton that you agreed to sell to Mr. McDaniel? A. I wouldn’t be sure about it. It was some cotton recently ginned — this other cotton had been ginned two months before that. Q. You did tell Mr. McDaniel that you took five or six bales of it down there ? A. Of that load, yes, sir. Q. And you told him to wait until you got the rest and at that time you meant to let Mr. McDaniel have the cotton? A. If the compress had taken the cotton, I would have sold it to Ted. ... It was the understanding, I would either put it on the platform and get railroad bill of lading or deliver it to the compress. . . . Q. Did you have some other cotton other than the 24 bales ? A. No, sir. Q. That was all the cotton you had? A. Yes, sir. ’’
The court, in effect, correctly told the jury that if it found any part of the cotton in question had been accepted and actually received by the appellee, then appellee should recover.
On the evidence presented, we think it was for the jury to determine whether a partial delivery of the cotton had been made.
The general rule, appears well settled that there may be a delivery sufficient to take the transaction out of the *595Statute of Frauds even though the actual possession of all or part of the goods remain in the seller.
American Jurisprudence, Yol. 49, p. 592, % 277, states the rule as follows: “Where Goods Remain in Possession of Seller. — A transaction may be brought within the exception of the statute applicable to the acceptance and receipt of goods pursuant to an oral contract of sale, notwithstanding actual possession of the goods remains in the seller. Even though the statute specifically provides that there must be an actual receipt, it is well settled that the statute does not mean that the goods must pass into the custody of the purchaser. There may be an actual receipt notwithstanding the custody remains unchanged. It is sufficient if the custodian holds them in a different character or capacity, for instance, as agent or as bailee of the buyer. The question whether there has been a delivery and actual receipt, where the goods remain in the custody of the seller, is one of- the sufficiency of the evidence, so that varying results have been reached in particular cases involving factually such transactions as sales of horses, cattle, oxen, or sheep, hay, growing timber, lumber or wood, produce, corn, cotton, etc., stock in trade, goods in store .or warehouse, dresses and clothing left for alterations, and various miscellaneous items and chattels. In all cases the proof must be clear and unequivocal, and establish an'actual change of the relation of the parties to the property. ’ ’
In 37 O. J. S., p. 641, § 159, the author says: “The acceptance and receipt may be by the buyer or by one authorized by him. The acceptance and receipt which the statute of frauds requires must be by the buyer himself or by someone authorized to accept and receive in his behalf. When delivery is made to a third person, under the direction of the buyer that such shall be done, this is sufficient to take the case out of the statute. ’ ’
Here, according to appellee’s testimony, which the jury accepted as true, it was agreed that the cotton should be delivered to appellee at the Compress at Hope. The appellant actually carried at least five bales of cotton and *596unloaded it on the platform of the Compress at Hope with the admitted intention of delivering it to appellee in accordance with the contract. It was a sale on credit — no lien was claimed by appellant.
In these circumstances, the jury was justified in finding that there was therefore accomplished a partial delivery and this would satisfy the requirements of the Statute of Frauds, and whether, as claimed by appellant, after said partial delivery he went back to the Compress and repossessed and removed the cotton, did not destroy the effect-of such delivery in the circumstances here.
When we give, as we must, the strongest probative force to all the testimony and every reasonable inference deducible therefrom in favor of appellee and the jury’s verdict, we are unable to say that there was no substantial testimony to support the jury’s finding that there was accomplished a partial delivery which satisfied the requirements of the Statute of Frauds.
Finding no error,, the judgment is affirmed.
The Chief Justice concurs.