Atherton v. Newhall

123 Mass. 141 | Mass. | 1877

Gray, C. J.

It is unnecessary to consider whether there was a sufficient delivery to complete the sale, because it is quite clear, upon the authorities, that there was no such acceptance and receipt of part of the goods as would satisfy the statute of frauds. Gen. Sts. c. 105, § 5. Such acceptance must be by the buyer himself, or by some one authorized to accept in his behalf. The acts of the buyer on Saturday did not constitute such an acceptance, because, according to the seller’s own testimony, the buyer merely agreed to take all the sides of leather of a certain thickness, which were not then set apart by themselves, but formed part of a large pile from which they were afterwards to be selected by the seller. Knight v. Mann, 118 Mass. 143. The receipt of part of the leather by the expressman did not constitute such an acceptance, because he was not authorized to accept go as to bind the buyer. Johnson v. Cuttle. 105 Mass. 447. The acceptance by the buyer on Monday, of the part brought by the expressman, was not a sufficient acceptance to take the sale of the whole out of the statute, because it appears that it was not with an intention to perform the whole contract and to assert the buyer’s ownership under it, but, on the contrary, that he immediately informed the seller’s clerk that he would be responsible only for the part received. Townsend v. Hargraves, 118 Mass. 325, 333. Remick v. Sandford, 120 Mass. 309.

Judgment on the verdict.