Brand v. Focht

5 Abb. Pr. 225 | NY | 1868

Davies, Ch. J.

(After stating the facts). —This case presents no serious difficulty. The case of Shindler v. Houston (1 N. Y. [1 Comst.], 261) is quite decisive. . In this case, as in that, the contract of sale not being in writing, and as no part of the purchase money was paid by the vendee, the contract was void by the statute of frauds (2 Rev. Stat., 136, § 3, subd. 3), unless the buyer ‘‘ accepted and received” the whole or a part of the property. In the present case it is not asserted that any part of the purchase money was paid, or that there was any delivery of the property in whole or in part, except the alleged symbolical delivery, evidenced by the bill of lading which the plaintiff got into his possession.

A delivery of the property, to satisfy the requirements of the statute, must be a delivery by the vendor, with the intention of vesting the right of possession in the vendee, and there must be an” actual acceptance by the latter, with the intent of taking possession as owner; and this rule can only be satisfied by something done subsequent to the sale, unequivocally indicating the mutual intentions, of the parties (Shindler v. Houston, supra). How, it is quite clear that these vendors never did, and never intended to, make any delivery of the coal in whole or in part, to this plaintiff, upon the contract of sale which he sets up. And it is equally clear that they never delivered the bill of lading with any intent to complete and perfect the sale. Nay, it is very manifest that they never intended to part with the bill of lading, except upon the condition and understanding that the plaintiff would purchase'the cargo of coal therein mentioned, at the rate of $6.50 a ton. This he peremptorily declined to do, and detained the bill of lading, against the remonstrance of the defendant’s agent. He clearly had no right so to detain it, and now setting it up as evidence of the delivery of the coal, under the contract of sale made in March, is a fraud upon the defendants. They never delivered it to the plaintiff with any such intent or for any such purpose, and it cannot now be permitted to the plaintiff that he should avail himself of this bill of lading, thus improperly retained by him, to make a title in himself to this coal.

The contract of sale not being in writing, as no part of the purchase money was paid, and as there was no delivery in whole or in part, of the property purchased, and no symbolical delivery, it follows that the plaintiff was never vested with the title to this coal. He never had possession of it, actual or constructive ; he was not the owner, and cannot, therefore, maintain this action. On the contrary, the evidence conclusively established that the plaintiff was not the owner of the cargo of coal in controversy, and that he was not entitled to the possession thereof. He never acquired any title thereto. This difficulty is fundamental with the plaintiff’s right of recovery, and it therefore becomes unnecessary to examine the other question suggested.

The nonsuit was properly granted, and the judgment should be affirmed.

All the judges concurred.

Judgment affirmed.