| Vt. | Oct 15, 1881
The opinion of the court was delivered by
It is contended on behalf of the defendant that the evidence did not support the charge. We have not examined very carefully to see whether this contention is well founded or not, because we are well persuaded that the exceptions do not disclose a sufficient acceptance and receipt of the property to take the case out of the Statute of Frauds.
All the cases agree that the receipt and acceptance of goods, to satisfy the terms of the statute, must be proved by clear and unequivocal acts on the part of the buyer. It was not sufficient in this case that the defendant purchased the property absolutely, and agreed to pay therefor a stipulated price, and to receive it where it was, and that plaintiff, relying thereon, forbore further care and control thereof.
At the time of the sale to defendant, the property was in the actual possession of Eastman, where plaintiff had permitted it to remain from the time he purchased it at sheriff’s sale. There was testimony tending to show that at the time defendant purchased it he owned the stock on the farm where Eastman lived, and that about that time he became the owner of the farm, and that the property was used on the premises ; but it does not appear what the relations were between the defendant and Eastman, nor by whose, authority the property was used up. There is nothing to show that Eastman was in any sense the defendant’s agent, so that his possession could be said to be the defendant’s possession. For the purposes of this case, Eastman must be taken to' be plaintiff’s bailee, and his possession plaintiff’s possession. Now, when the goods are in the possession of a third person at the time of sale, there must be an agreement by such third person to hold as the bailee of the buyer; an attornment, so to speak, to him. In Bentall v. Burn, 3 B. & C. 423, a hogshead of wine
In Farina v. Home, 16 M. & W. 119, goods were shipped by the plaintiff from abroad to England, on the verbal order of the defendant, at a price exceeding £10. They were sent to plaintiff’s shipping agent in London, who received them and warehoused them with a wharfinger, informing the defendant of their arrival. The wharfinger handed to the shipping agent a delivery warrant, whereby the goods were made deliverable to him or his assignees by indorsement, on payment of rents and charges. The agent indorsed and delivered said warrant to the defendant, who kept it several months, and, notwithstanding repeated applications, did not pay the price of the goods nor the charges thereon, nor return the warrant, but said he had sent it to his solicitor, and that he intended to resist payment, for that he had never ordered the goods, and that they would remain in bond for the present. Parke, B., said : “ This warrant is no more than an engagement by the wharfinger to deliver to the consignee or any one he may appoint, and the wharfinger holds the goods as the agent of the consignor, who is the vendor’s agent, and his possession is that of the consignee until an assignment has taken place, and the wharfinger has attorned, so to speak, to the assignee, and agreed with him to hold for him. Then, and not till then, the wharfinger is the agent or bailee of the assignee, and his possession that of the assignee, and then only is there a constructive delivery to him.”
No acts of the party sought to be charged are proved. We are presented with a naked verbal agreement. In order to satisfy the statute, when the property is not in the purchaser’s possession, there must be something more than mere words. The purpose of the statute was to prevent frauds and perjuries; but
Judgment reversed, and cause remanded.