Shepherd v. Pressey , 32 N.H. 49 ( 1855 )

Bell, J.

-The provision of our statute relative to contracts for the sale of goods, (Rev. St., ch. 180, sec. 9,) is substantially, and almost in terms, the same as the English statute of frauds; 29 Ch. II., ch. 3, sec. 17. This case falls under that clause of the statute which provides, that “ no contract for the sale of any goods, wares or merchandize for the price of thirty-three dollars and upwards, shall be valid, unless the buyer shall accept part of the property so sold, and actually receive the same.”

The recent case of Hunt v. Hecht, 20 E. L. & E. 524; S. C., 8 W. H. & G. 84; shows the received construction of the English statute. It is there held that the question is, whether the defendants accepted part of the goods sold, and actually received the same. There is no acceptance, .unless the purchaser has exercised his option to receive them or not, or has done something that has deprived him of his option.

There must be an actual acceptance by the buyer, with an intention of taking the possession as owner. Phillips v. Bistolli, 2 B. & C. 513; S. C., 3 D. & R. 827. No act of the seller alone, in however strict conformity to the terms of the contract, will satisfy the statute. There must be acts of the buyer, of | accepting and actually receiving part of the goods sold, beyond » the mere fact of entering into the contract, to bind the latter. Thus, though the general rule is that a delivery to a carrier according to the order of the buyer is a complete delivery to him, and vests the property in him, so that they are after-wards at his risk, in cases not within this statute, yet there is in such a case no actual acceptance to satisfy the statute, so ¡ long as the buyer has a right to object to the quantity or quality* of the goods. Kent v. Huskisson, 3 B. & P. 233 ; Hanson v. Armitage, 3 B. & A. 557.

The removal of goods by the seller to a place appointed by the buyer, will not imply any acceptance of the goods by the latter. Astey v. Emery, 4 M. & S. 262 ; Carter v. Touissant, 5 B. & A. 855 ; Dodsley v. Varley, 12 A. & E. 632; Baldy v. Parker, 2 B. & C. 37; Kent v. Huskisson, 3 B. & P. 233; Aribal v. Levy, 10 Bing. 376 ; Anderson v. Hodgson, 5 Price 630; Norman v. Phillips, 14 L. J., N. S. 306; Gorman v. Boddy, 2 C. & K. 145 ; 14 M. & W. 277.

Still less a mere separation of goods from others, owned by the seller. Hawe v. Palmer, 3 B. & A. 321.

| Though if the buyer, after the completion of the contract, Jassume the control of the property, as by selling a part of it, Chaplin v. Rogers, 1 East 192; or by directing a horse to be kept at livery for him, or sent to pasture, if the seller assents to the proposal, thus surrendering his lien for the price; Elmore v. Stone, 1 Taunt. 458; Carter v. Touissant, ante, this has been held to be an acceptance. But if there is nothing indicating such surrender of the seller’s lien for the price, any acts of control by the.buyer will not be an acceptance. Tempest v. Fitzgerald, 3 B. & A. 680; Carter v. Touissant, ante; Smith v. Surman, 9 B. & C. 561; Boulter v. Arnott, 1 C. & M. 333; Goodall v. Skelton, 2 H. B. 316.

In the case of Schindler v. Houston, 1 Comst. 261, it was held in New-York that to constitute a delivery and acceptance of goods, such as the statute requires, something more than mere words is necessary. Superadded to the language of the contract, there must be some act of the parties amounting to a transfer of the possession, and an acceptance thereof by the buyer; and that the case even of any cumbrous articles is not an exception to this rule; S. P. Artcher v. Teh, 5 Hill 205 ; and Ely v. Ormsby, 12 Barb. 570. The case of Dale v. Simpson, 21 Pick. 384, in Massachusetts, recognizes the same principles.

Where the facts in relation to a contract of sale, alleged to be within the statute of frauds, are not in dispute, it belongs to the court to determine their legal effect. Thus in Chaplin v. Rogers, 1 East 192, it was held, that when the facts and intentions of the parties are ascertained, it is for the court to decide | whether by law they constitute an acceptance; but if they are disputed, it is a question for the jury, whether there has been a | delivery and acceptance in point of fact; and their finding that there was an acceptance, puts an end to the question of law.

The present case is meagre in its statements of facts, but it is obvious that the burden of proof is upon the plaintiff; and if he failed to establish any fact necessary to make out his title, the defendant was entitled to a nonsuit or verdict.

From the settled construction of the statute of frauds, it follows that there was nothing in the delivery or deposit of these goods at the place of delivery, agreed on by the parties, in the absence of the defendant, which can be construed as an accept^ anee and actual receipt of the goods by him.

Notwithstanding any thing in the terms of their unwritten**, contract, if the plaintiff had transported his potatoes to the place of delivery in perfect order as to quantity, quality and condition, at the precise time stipulated, and had there tendered them to the defendant, the latter might take or refuse them, as he pleased. And so the defendant, being there with his car and his money, might have tendered the price agreed on to the plaintiff, and demanded the potatoes, and the latter might deliver them to him, or sell them to another, as he pleased, because their verbal agreement was not binding in law upon either of/ them.

There is in this case no direct evidence of any act of the defendant, from which an acceptance and actual receipt of the articles agreed for can he inferred, and the only evidence to be considered is his declarations. As mere words constituting a part of the original contract do not constitute an acceptance, so we are of opinion that mere words afterwards used, looking to the future, to acts afterwards to be done by the purchaser towards carrying out the contract, do not constitute an acceptance, or prove the actual receipt required by the statute.

The testimony of Augustus Shepard alone seems material to be considered. He says he was present at a conversation between the plaintiff and defendant a week or fortnight after the potatoes were left at the Petty depot, and after the defendant was informed of that fact; and the defendant then told the plaintiff that Leeds said he would take the potatoes away the next Monday. He told the plaintiff to let the bags be there, the potatoes would be taken the next Monday, and that he, the defendant, would let plaintiff have some sacks instead of those in which the potatoes were, if he could not do better. The plaintiff contends that this evidence was proper to be considered by the jury as an accept-' anee of the goods then made. But we think it can not be so regarded. It relates to acts to be done at a future day; a taking away of the potatoes on the next Monday. It does not necessarily or naturally imply any waiver of his right to object or refuse the goods on account of any defect of their quality or quantity. It falls entirely short of proving an actual receipt of the potatoes, which is also indispensable to give validity to the bargain; for there is no proof that they were left in the care of any one to be delivered to the defendant, or that the plaintiff in any way assented to the delivery until the purchase money was paid.

The testimony of Underhill is too uncertain to be relied on, in proof of either the acceptance or receipt of these potatoes by the defendant. He says the defendant said he had some potatoes at West Canaan, and wanted him to take them down below, but the witness could not say positively whether he said they were his, or belonged to some one else. If he did not admit them to be his, the evidence has no point.

Verdict set aside, and plaintiff nonsuit.