Edwards v. Grand Trunk Railway of Canada , 54 Me. 105 ( 1866 )

AppletoN, C. J.

This is an action of assumpsit for two hundred and fifty cords of wood, at $2,25 per cord.

The plaintiff offered evidence proving a parol agreement with the defendant corporation, through .its agent, for the purchase of a quantity of cord wood. To avoid the statute of frauds, R. S., c. Ill, §5, upon which the defendants rely, the plaintiff insists that the contract ivas one for the manufacture of cord wood and not for its sale.

In Garbutt v. Watson, 5 B. & A., 613, there was a verbal contract by the plaintiffs, who were millers, for the sale of a quantity of flour, which at the time was not prepared and in a state capable of delivery; and it was held that this was a contract for the sale of goods within the statute of frauds. In Waterman v. Meigs, 4 Cush., 497, an agreement for the delivery of a quantity of planks for ship building, at a future time, and for a specified price, was held to be a contract for the sale of goods within the statute of frauds. The principles of these decisions was fully affirmed when this case was before us, in 48 Maine, 380.

In delivering the opinion of the Court, in 48 Maine, 381, Mr. Justice KENT remarks as follows : — "In the case before us, there was no agreement for any particular wood; no stipulation that it was to be cut from plaintiff’s land, and no limitation of time when it should be cut. The contract might be fulfilled by the delivery of wood already cut or bought of another person.” The plaintiff testified that no quantity of acres nor price therefor was agreed upon, that " he spoke of cutting and hauling the wood from his own land, and that a certain location was named, containing some maple growth,” from which the wood was hauled. But this statement presents no material alteration of the facts. Speaking about cutting wood on a certain lot is very different from contracting that the wood should be cut on a certain lot. There was no bargain as to any specific lot, from which the wood was to be taken. The contract, as stated by the plaintiff, did not require, for its fulfilment, wood from any particular or definite lot of land. The plaintiff might have bought it anywhere, without the violation of his agreement.

The plaintiff entirely fails in showing any acceptance of the wood by the defendants, or by any agent of theirs. As long as the seller’s lien on goods for their price remains, and the buyer cannot maintain trover for their detention, there is no acceptance within the statute. To constitute a delivery and acceptance, something more than mere words is necessary. There must be some act of the parties amounting to a transfer of the possession, and an acceptance thereof by the buyer. Shindler v. Houston, 1 Coms., 261. The defendants were not, from any act of theirs, precluded from excepting to the quality of the wood. Maxwell v. Brown, 39 Maine, 98. In Holmes v. Hoskins, 28 Eng. Law & Eq., 54, the defendant verbally agreed to purchase of the plaintiff some cattle then in the field. After the bargain was concluded, the defendant felt in his pocket for his check book, in order to pay for the cattle, but finding it was not there, he told the plaintiff to come to his house in the evening for the money. It was agreed that the cattle should remain in the plaintiff’s field for a few days and that the defendant should feed them with the plaintiff’s hay, which was done. It was held that there was no evidence of acceptance within the statute of frauds. "The statute says,” observes Martin, B., "that no contract of this sort shall be binding, unless the buyer shall accept part of the goods and actually receive the same, or unless there be a payment or note in writing. In this case none of these requisites have been complied with. Neither party intended the plaintiff should have the cattle till he paid for them.”

The wood was never measured by any assent of the defendants, nor did they in any way take possession or control of the wood. To take the case out of the statute, actual receipt by the buyer of goods verbally bargained for must be shown. Shepherd v. Pressy, 32 N. H., 49; Gilman v. Hill, 36 N. H., 311. This the plaintiff utterly fails in doing.

If this were the case of a manufactured article, it has been held that, to pass the title, there must be an acceptance, either express or implied, to transfer the title and enable the manufacturer to recover its price. Moody v. Brown, 34 Maine, 107.

The nonsuit was properly ordered and the exceptions must be overruled.

CuttiNG, Kent, Dickerson, Daneorth and Tapley, JJ., concurred.