82 Pa. Super. 584 | Pa. Super. Ct. | 1923
Argued October 10, 1923. This was an action in assumpsit for a lot of cotton yarn sold and delivered by plaintiffs to defendants. The testimony as to what occurred prior to and at the consummation *586 of the sale was conflicting. The issues of fact were submitted to the jury in a charge as to which there was no complaint by defendants except the refusal to give binding instructions in their favor. The verdict for the plaintiffs resolves all such issues of fact in their favor and we must consider the evidence in the light most advantageous to them.
The only point of law involved in this appeal deals with the construction of the fourth section of the Sales Act, (Act of May 19, 1915, P.L. 543). It provides, inter alia, that "A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf."
The goods in suit were of the value of more than five hundred dollars; nothing was given by way of earnest or in part payment; no note or memorandum in writing of the contract was signed by the defendants or any one in their behalf. Whether this action on the sale can be enforced depends, therefore, upon whether there was an acceptance and receipt of the goods by the defendants.
As to the character of the acceptance which will take the sale out of the statute and justify an action to enforce it, the act says, (section 4, paragraph 3): "There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, or any part thereof, expresses by words or conduct his assent to becoming the owner of those specific goods."
Commenting on this provision the editor of Uniform Laws, Annotated, Vol. 1, p. 30, very properly differentiates such an acceptance, requisite to enforce by action an oral contract of sale, from the acceptance defined in *587
section 48 of the act as indicating the buyer's satisfaction with the performance of the contract by the seller. He says: "It would seem that an acceptance sufficient to permit the proof of an oral contract is not necessarily the same as an acceptance sufficient to show the satisfaction of the buyer with his bargain. In other words, a buyer might accept the goods so far as to preclude him from setting up the statute of frauds as a defense without accepting to the extent of precluding him from setting up other defenses such as the failure of the goods to comply with the contract or the like." This is especially the case as respects such an acceptance — which is expressly sanctioned in the act as above — made before the delivery of the goods, which while sufficient to warrant the enforcement by action of an oral contract, may not preclude the buyer from defending in such action if the goods prove not to be as represented or warranted. For example, if on inspection of an automobile, a piano, or other article of merchandise, I agree to purchase that specific article and it is delivered to me, an action may be brought against me to enforce such contract without any payment on account, or note or memorandum in writing signed by me, even though on examination of the article after delivery I find it is not as warranted, refuse to keep it, and offer to return it to the seller. For in such case I am within the very terms of the third paragraph of the fourth section of the act and having by my words or conduct expressed my assent to becoming the owner of that specific article, the right to bring an action against me on the oral contract becomes complete upon delivery of the article to me leaving the outcome of the action dependent on the determination of the jury upon the merits from the facts in evidence: Castle v. Swift
There was evidence in the present case, which, if believed by the jury, would justify a finding by them that one of the defendants inspected the very lot of yarn in suit at the plaintiffs' warehouse, drew samples of it and took them to his partner for examination; that after such inspection and examination the other partner, acting on behalf of the defendants, agreed to buy the whole lot of yarn, "As is," at 17 1/2c per pound, and thereby before delivery expressed defendants' assent to becoming the owners of those specific goods; and that the specific goods thus purchased by them were actually delivered to and received by the defendants. This brings the case squarely within the requirements of the Sales Act and permits the plaintiffs to bring their action to enforce the contract, and a recovery if entitled thereto on the merits.
The jury having decided the disputed issues of fact as to the merits of the case in favor of the plaintiffs without substantial complaint by the defendants as to the rulings of the court in connection therewith, it follows that the judgment on the verdict should not be disturbed.
The assignments of error are overruled and the judgment is affirmed.
