Dole v. Stimpson , 38 Mass. 384 ( 1838 )

Wilde J.

delivered the opinion of the Court. The question submitted to the determination of the Court is, whether on the evidence reported, allowing the facts to be correctly stated by the witnesses, there was an executed contract of sale and purchase between the parties, or an executory contract to be completed at a future time. It appears in evidence, that the defendant offered the plaintiff the sum of $ 800 for a steam-engine, and agreed to pay $ 350 when he should take it away ; which was to be in two or three weeks at the furthest, and to give a note, with a Mr. Shove as surety, for the balance, payable in six months. This offer was accepted by the plaintiff, who thereupon said to the defendant, “ then you consider the engine to be yours as it is,” and the defendant replied “ yes.” The engine was not delivered to the defendant,- but remained in the possession of the plaintiff, who afterwards requested him to take it away, which he declined to do. This and the other evidence in the case, show an agreement for a sale and purchase to be completed at a future time, and not an actual sale. The defendant had no right to take away the engine without first paying the $ 350 and giving his note for the balance, according to his agreement. If the contract had been in writing, the defendant would be liable on his contract, unless he had a right to decline the purchase on account of the plaintiff’s defective title. But the agreement was verbal, and so was void by the statute of frauds.

This agreement is very much like the one in Tempest v. Fitzgerald, 3 Barn. & Ald. 680. There A had agreed to purchase a horse from B, for ready money, and to take him away within a certain time. At the expiration of the time A -ode the horse, and gave directions as to its treatment, &c., but returned it to B’s possession to keep for a further time, when he promised to take it away and pay the price. The horse died before A paid the price or took it away. And it was held. there was no acceptance of the horse, within the meaning of the statute of frauds. The case of Baldey v. Parker, 2 Barn. & Cressw. 37, was decided in the like manner and on facts nearly similar. In that case A had contracted with B for the purchase of sundry goods, some of which A marked with a pencil. Others were measured in his presence, and others he assisted to cut from larger bulks ; and he desired an account of the whole to be sent to his house. A bill of parcels was accordingly sent, together with the goods, when he refused to accept them. Upon these facts it was held, that there was no delivery.

In each of those cases it was urged, and with greater plausibility than it can be urged in this case, that there was evidence tending to show a delivery and acceptance of the properly bargained for. There is no such evidence in the case reported. Nothing appears but the mere agreement to purchase. No act was proved that can be construed as an act of delivery. The engine, at the time of the agreement, was attached to the realty, and could not be delivered until separated therefrom. This separation was to be made by the plaintiff; and it is a fundamental principle in the doctrines of sales, that where any thing remains to be done by the vendor, before the goods sold are to be delivered, a present right of property does not vest in the vendee.

Another circumstance was proved at the trial, which has a tendency to show that the contract was not consummated. The $ 350 which the defendant agreed to pay on the delivery of the engine, was intended to be appropriated to the discharge of a mortgage on the engine ; and the defendant had a right to insist that the money should be thus appropriated, and that another mortgage should likewise be discharged, before he would be bound to complete the purchase.

Considering all these circumstances, we think it very clear, that the intended purchase was never completed, and that the defendant’s agreement to purchase, being within the statute o' frauds, is not a binding and valid contract.

Motion to take off the nonsuit overruled-