Clark v. Labreche , 63 N.H. 397 ( 1885 )

The verbal bargain between the parties was an executory contract for the sale of certain goods. The single question is, whether the goods were accepted and received within the requirement of that clause of our statute of frauds (G. L., c. 220, s. 16) enacting that no oral contract for the sale of goods, wares, or merchandise, for the price of thirty-three dollars or more, is valid unless the buyer accepts and actually receives part of the property. So far as the question is one of fact, it has been found against the plaintiffs, and such must be the finding as matter of law.

Conceding that acceptance and receipt may be constructive only, all the cases agree that such acceptance and receipt must be proved by clear and unequivocal acts on the part of the buyer; but as acceptance generally implies receipt, and plainly would have that effect in this case, it is necessary to consider the question of acceptance only, which, as against the buyer, is to be determined solely by his acts.

The test here therefore is, whether the acts of the defendant, done or undone, clearly amount in legal effect to a constructive acceptance; for, the question being one of fact, it is only when the facts are not controverted, and afford plain and unequivocal evidence of the parties' intention, that the court will undertake to determine their legal effect.

What, then, are the facts? So far as they bear upon the matter of acceptance, they are, — that both parties understood the plaintiffs were to store the goods on their arrival in Boston until the defendant should order them to be forwarded to his place, of business in Manchester; that the goods were accordingly stored by the plaintiffs in a Boston warehouse; that they remained there a reasonable time, and then were withdrawn by the plaintiffs and forwarded in their firm name to the defendant, contrary to his order, who refused to receive them; and that he had a reasonable time in which to exercise his right of examining the goods before they were so forwarded.

Bearing in mind that no act of the seller alone, in however strict conformity to the terms of the contract, will satisfy the statute, and that the mere storage of goods by the seller, or their removal to a place appointed by the buyer, will not imply any acceptance of them by the latter (Shephard v. Pressey, 32 N.H. 55, 56, and cases cited), it is obvious that upon the facts to which reference has been had the law does not imply an acceptance, for, so far as appears, the goods were deposited in the warehouse by the plaintiffs, as their property, without any indicium whatever of title or ownership in the defendant, and with no agreement affecting their lien, and so continued to remain under the same apparent ownership and control until they were taken away and billed and forwarded by the plaintiffs as owners; whereas acceptance cannot legally take place, in the absence of a special agreement, so long as the seller preserves his dominion over the goods so as to retain his lien for the price, for he thereby prevents the purchaser from accepting and receiving them as his own within the meaning of the statute. Baldey v. Parker, 2 B. C. 37, 44; Benj. Sales (3d Am. ed.) s. 187; Sto. Sales, s. 276; Browne St Fr. (4th ed.) s. 317. And, consequently, if there is nothing indicating a surrender of the seller's lien, any acts of control by the buyer will not be an acceptance (Shepherd v. Pressey, supra 56, and cases cited), for although there may be cases in which the goods remain in the possession of the vendor, and yet may have been received and accepted by the vendee, in such cases the vendor holds possession, not by virtue of his lien as vendor, but under some new contract by which the relations of the parties are changed. Cusack v. Robinson, 1 B. S. 299, 308; Castle v. Sworder, 6 H. N. 828; Dodsley v. Varley, 12 Ad. E. 632; Safford v. McDonough, 120 Mass. 290, 291. But the acts of the parties must be, in such a case, wholly unequivocal; and if the vendor retain possession of the subject-matter of the sale, it must be under circumstances which expressly show that he holds as agent or bailee of the other party, and has abandoned all claim to the property of every kind. Sto. Sales, s. 278.

No such acts or circumstances appear in this case. In fact, there is nothing found on which it can be held as matter of law that the plaintiffs acted as the defendant's agents or bailees in the storage and retention of the goods, or from which an acceptance can be implied against him.

Judgment for the defendant.

ALLEN, J., did not sit: the others concurred.