8 Ga. App. 79 | Ga. Ct. App. | 1910
The Palmer Hardware Company sued Blumenfeld on an account for the purchase-price of certain stove and plow castings, amounting to $68.41. The defendant pleaded the statute-of frauds. The proof showed that the Hardware Company sold
“‘The acceptance and receipt of merchandise of a greater value than fifty dollars, under an oral contract of sale, which is contemplated bjr the Civil Code, § 2693, par. 7, as relieving the contract from the operation of the statute of frauds, must be such a transfer of the physical jjossession of the property as places the goods beyond the control of the vendor, and within the control of the vendee.’ Tender and refusal to accept are not sufficient to take the case out of the statute. Brunswick Grocery Co. v. Lamar, 116 Ga. 1 (42 S. E. 366).” Miller v. Smilh, 6 Ga. App. 447, 448 (65 S. E. 292). Even if ordinarily the setting aside of the merchandise in a designated place in the plaintiff’s warehouse, after it had been inspected by tlie defendant, would have amounted to delivery and acceptance, still no such constructive acceptance and delivery could be implied in the present case, because the intention of the parties was that it should be a cash sale, i. e., that the goods were not to pass beyond the control of the vendor into the control of the vendee until the purchase-money was paid. No waiver of this portion of the contract can be implied in the present case; for, even in its final act of tendering the eastings on the drays, the seller sent a bill for collection of the purehase-pri'ce, along with the goods.