The contract of sale, in this case, was clearly within the statute of frauds at the time it was made. The plaintiffs concede this, but they insist that the note or memorandum of the sale, signed two months after the sale was made, by the agent who negotiated the sale for the defendant, relieved the contract of the objection arising from the statute of frauds. But it appears in the case that, previously to the signing of the memorandum, the defendant on two different occasions refused to forward the goods when requested so to do by a messenger sent by the plaintiffs. The defendant thereby substantially informed the plaintiffs that he did not consider himself bound by the contract, and should not comply with its terms.

It further appears that, sometime before the signing of the memorandum, the defendant paid his agent, who negotiated the sale, for his services in that transaction, and thereby virtually gave him to understand that his agency in the matter was at an end.

It further appears that the signing of the memorandum was without the knowledge or consent of the defendant, and the fact that the plaintiffs procured it to be done so long after the sale was made, and after the defendant had twice refused *456to forward the goods, shows that they fully understood that the defendant had refused to he bound by the contract, and that they were seeking in a clandestine manner to make him bound.

We think that when this memorandum was signed the agent had no authority to bind his principal, and especially to these plaintiffs, knowing as they did that this action of his was without the defendant’s knowledge and against his will.

There is no error in the judgment complained of.

In this opinion the other judges concurred.