3 Mich. 322 | Mich. | 1854
By the Court,
The question presented by this case is, whether the parol agreement between the parties for the sale of the mill irons, comes within the statute of frauds. If it does, it must be adjudged void. The statute (R. S. 1846, p. 327, § 3) is in these words: “No contract for the sale of any goods, wares or merchandize, for the price of fifty dollars or more, shall be valid, unless the purchaser shall accept and receive part of the goods sold, or shall give something as earnest to bind the bargain, or in part payment, or" unless some note or memorandum in writing, of the bargain, is made, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.” This provision is not only broad and comprehensive, but clear and explicit. It is not a new provision of law, or of recent origin, as it is with some few verbal alterations, a copy of the 17th section of the English Statute of Frauds, which was enacted as early as 1677, and has been in force ever since.
By the common law, before the passage of the English
In the application of this section of the statute to the case under consideration, it will be necessary to examine the com tract for the sale of the irons. It conclusively appears from the facts found at the Circuit and certified to this Court, that the agreement for the sale of the irons was in parol, no note or memorandum in writing, of the bargain, having been made and signed by the party to be charged thereby; that the price of the iron as agreed upon by the parties was fifty dollars and over; that no part of the price was ever at any time paid by the vendor, either as an earnest to bind the bargain, or as part payment for the property, and that there never was any actual delivery of the articles, or any part of them by the vendor, nor any acktal acceptance or reception of the whole or any part of them, by the vendee. These ■are facts, about which there does not appear to have ever
Mr. Chitty says (Chitty on Cont. 390) that “ in order to satisfy the statute, there must be a delivery of the goods by the vendor, with an intention of vesting the right of possession of the whole in the vendee ; and that there must be an actual acceptance by the latter, with an intention of taking the possession as owner, and that the acceptance must be unequivocal.” This able writer, in terms, makes an actual acceptance of the property necessary to take a case out of the statute. But he goes further, and admits that it has. been holden by judicial decisions, under the statute in England, that a written order given by the seller to the buyer, directing the dock company, in whose care the goods were, to deliver them to the vendee, is a sufficient constructive delivery within the statute. But in such case, says the writer, it is necessary not only that the purchaser should accept the order, but that the party holding the goods, and who is the agent of the vendor, should recognize the order, and assent to retain the goods for the vendee. So also, under a parol bargain for the sale of a stack of hay between the parties, on the spot, evidence that the vendee subsequently sold a part of it to another person, was held to be sufficient evidence to warrant a jury in finding a delivery to, and acceptance by the vendee. So also in Elmore vs. Stone, 1 Taunt. 458, where the plaintiff, who kept a livery stable, and was a horse-dealer, asked a certain sum as the price for a pair of horses, the defendant, after offering a less sum, which
This is the strongest English case for the plaintiff, to be found. But the case in several subsequent cases, was much doubted, although never expressly overruled. In this country it has been decided, that where goods were sold while they were in the possession of a bailee on storage, a delivery of the certificate of the bailee, acknowledging that he had ‘the goods in his possession on storage, was a sufficient constructive delivery of the goods. It has also been held that the cargo of a ship at sea, may be transferred under a verbal sale, by a delivery of the bill of lading with the proper assignment endorsed on it. In all of these cases, acts subsequent to the agreement of sale, were alone regarded as evidence of a constructive delivery and acceptance of the property. But in the case before us there are no such subsequent acts. It is true that it has been held, and so Mr. Comyn in his treatise on Contracts and Agreements lays down the doctrine, that where the goods sold are ponderous, and not capable of actual delivery, and the vendee accepts them, and in virtue of such transfer, proceeds to exercise a right over them by disposing of them, or by giving orders and directions respecting them as the owner thereof, such acts may countervail the actual delivery and vest the property in the vendee. Delivery by construction has never been extended beyond this rule laid down in Comyn on Contracts, and in the case under consideration, it does not appear that the articles were ponderous, or that they were so regarded by the parties, and this is a fact which cannot legally be presumed without proof. Not only so, it is a fact notorious, that many of the irons for
This is the only sound view which can be taken of the third section of the act, and give it the force and effect intended ; and with this view, it must be apparent that the plaintiff’s case, now under consideration, stands upon the naked verbal agreement of the parties alone. Hpon such ground, with no other foundation to uphold it, neither that or any other similar case can be sustained without violating both the letter and spirit of the statute of frauds, which has been pronounced to be “ the most comprehensive, salutary, and important legislative regulation, affecting the security of private rights, to be found on record.”
Let it be certified to the Circuit Court for the County of Washtenaw as the opinion of this Court, that the plaintiff is not entitled to recover.
Certified accoz’dingly.