Davis v. Moore , 13 Me. 424 ( 1836 )

Tbe opinion of the Court, after a continuance, was delivered by

Weston C. J.

— Tbe logs, which were the subject matter of the contract, were not capable of a manual delivery. The quantity bad been estimated by one Keating ; and they were agreed to be sold by that estimate. The plaintiff then had nothing more to do ; and they remained subject to the disposition of tbe defendant. Ho thereupon forthwith agreed with the agent of the plaintiff) to haul a portion of the logs to his mill, they being at the distance of a mile; and this was done in the afternoon of the same day, and as the jury have found, as soon as it could be conveniently accomplished. We entertain no doubt, that this was such a delivery and acceptance of part of what was sold, as takes the case out of the statute of frauds. The actual delivery of part was made by the agent of the plaintiff; and the defendant employed the same agent to haul them to the brow of his mill. The case before us is so plain and direct a compliance with the statute, that we do not perceive the least room for doubt or hesitation. The defendant had no right to take a single log, except upon the basis of the contract, which was entire ; and having taken part, he is bound as a purchaser of the whole. The authorities cited for the plaintiff, fully sustain the ground taken by him.

It has been insisted, that this construction may leave a purchaser, who buys and receives a single article, liable to be charged as the purchaser of more, if the vendor can bring perjured witnesses to say that it was delivered as part of the greater number purchased. Parties are exposed to the commission of perjury, in relation to all facts depending on human testimony. If the sanctions of an oath, and a severe cross examination prove an insufficient security, the party liable to suffer must seek protection in the congruity and consistency of truth, and the extreme difficulty of making falsehood accord with the context of circumstances. The statute of frauds has interposed some salutary safeguards. If they are not sufficiently enlarged, the legislature alone has power to extend its provisions.

Judgment on the verdict.