44 N.Y. 661 | NY | 1871
On the trial, after proving that the statute of frauds in force in Maryland was substantially like our own, the defendants moved that the plaintiff be nonsuited, on the ground that the contract of sale was void by that statute, and the court denied the motion; and this ruling raises the only question for our consideration in this case.
There was no note or memorandum of the contract, and no part of the purchase-money was paid by the buyers; and, hence, unless the buyers accepted and received the hoops, within the meaning of the statute, the contract was void. A purchaser may accept without receiving, and he may receive without accepting; and, in order to comply with the statute of frauds, he must both accept and receive. Here the defendants accepted the hoops. One of them saw them in plaintiffs' yard; and the contract had reference to this particular lot of hoops which the plaintiffs finally delivered. There is nothing in the statute which requires that the accepting and receiving shall be at the same time. Either may precede the other; and, after both have concurred, the statute has been complied with and the contract becomes operative and valid. (McKnight v. Dunlop,
It is not necessary to determine in this case that a mere carrier, designated by the buyer, can both accept and receive for him, so as to make a compliance with the statute; but I can find no reason founded upon principle, or authority, to doubt that, after the buyer has accepted the article purchased, a carrier, designated by him to take and transport it, can bind him as his agent by receiving it. While there is not upon this question entire harmony in the views of judges, and while the authorities cannot all be reconciled, the general drift of them is toward the conclusion I have reached. (2 Parsons on Con., 326; Outwater v.Dodge, 6 Wend., 397; The People v. Haynes, 14 Wend., 546;Glen v. Whitaker, 51 Barb., 451; Spencer v. Hale, 30 Vermont, 314; Maxwell v. Brown,
It is said by some writers, that to create such an appropriation of the goods by the buyer as will answer the meaning attached to the words "accept and receive" in the statute, there must be such an actual delivery by the seller as will destroy all lien for the purchase-price, or right of stoppage in transitu. This, to the full extent, is not true. The seller has a lien for the purchase-price of the goods while they remain in his possession. And this lien he loses when he voluntarily parts with the possession, except when he delivers them to a carrier. In the latter case, his lien is extended and lasts, although the title has passed to the buyer, until the carrier has delivered the goods to the actual possession of the buyer. This lien is an arbitrary one, created by law. As observed by Lord KENYON, in Hodgson v. Lay (7 T.R., 436), it is "a kind of equitable lien adopted by the law for the purpose of substantial justice." When the seller retakes *666 the property in the exercise of this right of stoppage, he is not reinvested with the title, but simply placed in the actual possession of the goods, holding them as security for the purchase price.
The stoppage must be while the goods are in transitu, and that is usually when they are not in the actual possession of either party; and yet they may be in the actual possession of the buyer under such circumstances as not to take away the right of stoppage. This right exist, although the goods are shipped upon the buyer's own vessel, consigned to him at his place of residence. (Stubbs v. Lund,
All concur.
Judgment affirmed with costs.