Gardet

By the Court,

Tbe suit was brought for goods sold and delivered. The facts of the case were, that the defendants called at the plaintiff’s store, and agreed verbally to give him $1,37⅛ per gallon, for the quantity of brandy he bad on hand of a particular brand and in good casks, and the plaintiff agreed verbally that the defendants might have it, as soon as he could select and set apart the good casks. There was no evidence that the brandy contained in the good casks, was ever separated from other brandy which the plaintiff had. No bill of sale was made out by the plaintiff, no mark was placed upon tbe liquor sold to designate it as belonging to the defendants, no entry was made in the plaintiff’s books, and no writing or memorandum of any kind was made of tbe sale.

Some days after the verbal agreement above mentioned, the *400 plaintiff’s clerk called at tbe store of the defendants, when one of the defendants asked him if he could not sell the brandy, to which the clerk replied that he could on account of tbe defendants, and went away. The next day the clerk called again, when the defendants disputed the quantity which it was claimed they had agreed to take, but stated that…