126 N.Y.S. 868 | N.Y. App. Div. | 1911
This is an action to. recover the purchase price of a DeLaval cream separator. The defendants were engaged in a creamery business and had installed a United States separator. The contract was made by one Elston, an agent of the plaintiff, He'testified that the plaintiff’s machine was installed in the defendants’ creamery under an agreement that it was to be tested in competition with the United States machine, and that it was not to be paid for unless it did “ better all around work” than the other machine. He further testified, that the two machines were to be tested by the defendants’ butter maker, Mr. Sloan, and "that the defendants agreed to abide by his decision in reference to the two machines. The defendants admitted that the two machines were to be tested in competition, with each other, and that if the plaintiff’s machine did “ better all around work ” they were to accept it, but denied that they were to be bound by the judgment of Sloan.
The price of .the machine was $375. The contract was oral, and no part of the purchase price has been paid. The defendants argue that there has been no acceptance of the machine sufficient to take the contract out of the Statute of Frauds. The machine was installed in the defendants’ creamery July 3] 1906. This action was brought October 2, 1906. The serious question in the case is' whether, on this latter date, the defendants had accepted the machine within the meaning of the Statute of Frauds. (See Pers. Prop. Law [Gen. Laws, chap. 47; Laws of 1897, chap. 417], § 21 ; now Pers. Prop. Law [Consol. Laws, chap. 41 [Laws of 1909, chap. 45], § 31.)
The learned trial justice charged the jury as follows: “ If you should find that the bargain was as stated by Mr. Elston, that Mr. Sloan was to make the test and that whatever he said about it should be final, why then yon will not have to consider this question of keeping the machine or acceptance at all, because it is midis-pnted that Mr. Sloan did make a test, and that he reported to the
In Stone v. Browning (68 N. Y. 598) goods were sold under an arrangement that they were to be examined by the defendants at their store before they should become liable for the purchase price. The court laid down the rule concerning an acceptance under the Statute of Frauds as follows: “ The receipt of the goods by "the defendants at their store under this arrangement was clearly not an acceptance of them. They received them for the express purpose of seeing whether they would accept them or not. Some further act on their part was necessary to constitute an acceptance which would give validity to the contract of purchase. It was- requisite either that they should have made the examination and .pronounced it satisfactory, or that they should have dealt with the goods, or done some unequivocal act evincing their intention to accept them unconditionally as their own property, in order to supply the place of a written contract of purchase. * * * When goods arp sold subject to examination, and there is no written contract, Blackburn, in his work on Sales (pages 22, 23), lays down the rule as follows: ‘So long as the buyer can, without self-contradiction, declare that the goods are not to be taken in fullillment of the contract, he has not accepted them. And it is immaterial whether his refusal to take the goods be reasonable or not. If he refuse the goods, assigning grounds false or frivolous, or assigning no reasons at all, it is still clear that he does not accept the goods, and the question
It is well established that to satisfy the statute there must not only be a delivery of the goods by the vendor, but there must - also be an actual acceptance by the vendee with, an intention of taking possession as owner, and that this intention must be indicated by some unequivocal act. (Shindler v. Houston, 1 N. Y. 261; Pitney v. Glens Falls Ins. Co., 65 id. 6, 26; Scully v. Smith, 110 App. Div. 88; Follett Wool Co. v. Utica Trust & Deposit Co., 84 id. 151.) As stated in Pitney v. Glens Falls Ins. Co. (Supra), and many times reiterated, “ there must be some overt act done subsequent to_ the sale, unequivocally indicating the intention of the parties.”
Tested by the foregoing principles, do the facts in- this case establish as matter of law that defendants had accepted the property on the 2d of October, 1906$ when this action was instituted, assuming that Sloan’s judgment was to be conclusive ? I am of the .opinion that the-question must be answered in the negative. As stated, the machine was-installed July 3, 1906. Sloan as a witness for the-plaintiff testified that during the month of July .lie operated both separators for a few days at a-time alternately, and took-occasional tests while doing so; that he operated the plain tiff’s machine during-August; that about-the last of August he received :a letter from ótíe of the defendants notifying him not to .operate it longer, and tha-t he did not do so until after the time when this action was. commenced, He- further testified that thereafter he -operated it until March, 1907, when he left the service of the defendants, although there is evidence that he admitted that in thus operating it he was acting contrary to the defendants’ instructions. The defendants were ■engaged in other, business and were not at the creamery except, at rare intervals, and it does not appear that they were aware that Sloan, was disobeying their instructions. Testimony as to .occurrences subsequent to the commencement, of the action was clearly illegal, not only because the action must be determined with reference to the, facts which existed at the'time of its commencement,, but also because it is very clear that if the defendants.had.not then accepted., the machine they-have not done so since f.or the reason, that by.their answer interposed herein and by their resistance of,the.action, they
The judgment and order.must be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.
Apr. Div.—Vol. CXLII. 13