Fogg v. Atheneum , 44 N.H. 115 ( 1860 )

Nesmith, J.

There is no pretense upon the agreed statement of this case, that the defendants can be charged upon the ground that they were subscribers for the plaintiffs’ newspaper, or that they were liable in consequence of the existence of any express contract whatever. But the question now is, have the defendants so conducted as to make themselves liable to pay for the plaintiffs’ newspaper for tbe six years prior to tbe date of tbe plaintiffs’ writ, tinder an implied contract raised by the law and made applicable to this case.

If the seller does in any case what is usual, or what the nature of the case makes convenient and proper to pass the effectual control of the goods from himself to the buyer, this is always a delivery. In like manner, as to the question of acceptance, we must , inquire into the intention of the buyer, as evinced by his declarations and acts, the nature of the goods, and the circumstances of the case. If the buyer intend to retain possession of the goods, and manifests this intention by a suitable act, it is an actual acceptance of them ; or this intention may be manifested by a great variety of acts in accordance with the varying circumstances of each case. 2 Pars. on Con. 325.

Again, the law will imply an assumpsit, and the owner of goods has been permitted to recover in this form of action, where they have been actually applied, appropriated and converted by the defendant to his own beneficial use. Helepen v. Campbell, 2 W. Black. 827; Johnson v. Spiller, Doug. 167; Hill v. Davis, 3 N. H. 384, and the cases there cited.

Where there has been such a specific appropriation of the property in question, the property passes, subject to the vendor’s lien for the price. Robae v. Thwaites, 6 B. & C. 392. In Bavin v. Jervas, 7 C. & P. 617, the question was, whether the defendant had purchased and accepted a fire engine. It was a question of fact for the jury to determine. Lord Abinger told the jury, if the defendant had treated the fire engine as his own, and dealt with it as such, if so, the plaintiff was entitled to recover for its price. And the jury so found. 2 Greenl. Ev., sec. 108.

In Weatherby v. Bonham, 5 C. & P. 228, the plaintiff was publisher of a periodical called the Racing Calendar. It appeared that he had for some years supplied a copy of that work, as fast as the numbers came out, to Mr. Westbrook; Westbrook died in the year 1820; the defendant, Bonham, succeeded to Westbrook’s property, and went to live in his house, and there kept an inn. The plaintiff, not knowing of Westbrook’s death, continued to send the numbers of the Calendar, as they were published, by the stage .coach, directed to Westbrook. The plaintiff proved by a servant that they were received by the defendant, and no evidence was given that the defendant had ever offered to return them. The action was brought to recover the price of the Calendar for the years 1825 and 1826. Talford, for the defendant, objected that there never was any contract between the plaintiff and the present defendant, and that the plaintiff did not know him. But Lord Tenterden said, if the defendant received the books and used them, I think the action is maintainable. Where books come addressed to the deceased gentleman whose estate has come to the defendant, and he keeps the books, I think, therefore, he is clearly liable in this form of action, being for goods sold and delivered.”

The preceding case is very similar, in many respects, to the ease before us. Agreeably to the defendants’ settlement with Hood & Co., their contract to take their newspaper expired on the 1st of May, 1849. It does not appear that the fact that the paper was then to stop was communicated to the present plaintiffs, who had previously become the proprietors and publishers of the newspaper establishment; having the defendants’ name entered on their books, and having for some weeks before that time forwarded numbers of their newspaper, by mail, to the defendants, they, after the first day of May, continued so to do up to January 1, 1860. During this period of time the defendants were occasionally requested, by the plaintiffs’ agent, to pay their bill. The answer was, by the defendants, we are not subscribers to your newspaper. But the evidence is, the defendants used, or kept the plaintiffs’ books, or newspapers, and never offered to return a number, as they reasonably might have done, if they would have avoided the liability to pay for them. Nor did they ever decline to take the newspapers from the post-office.

If the defendants would have avoided the liability to pay the plaintiffs, they might reasonably have returned the paper to the plaintiffs, or given them notice that they declined to take the paper longer.

We are of the opinion that the defendants have the right to avail themselves of the statute of limitations. Therefore, the plaintiffs can recover no more of their account than is embraced in the six years prior to the date of their writ, and at the sum of $2 per year, with interest, from date of writ, or the date of the earliest demand of the ¡Dlaintiffs’ claim upon the defendants.