39 Mo. 211 | Mo. | 1866
delivered the opinion of the court.
The plaintiff sues for the price of a herd of cattle, sold and delivered to the defendants. It appears that the defendants’agent went to the farm of" plaintiff in'Pettis county, examined the cattle and bargained for the whole herd. The
The statute provides that no sale of goods shall be valid unless the buyer shall accept part of the goods so sold and actually receive the same — Rev. Stat. 1855, p. 809, § 6. The goods must not only be accepted, but actually received. An acceptance ascertains the identity and quality of the goods sold, and the receiving of them changes the possession.
The question here is not so much of an acceptance as of a delivery and receipt of the cattle. The number and quality of the cattle were sufficiently ascertained, but there was no delivery of possession. Mere words were not enough for the purpose. There must be some unequivocal acts of acceptance and actual receipt of the property — Kirby v. Johnson, 20 Mo. 354; Shepherd v. Pressey, 32 N. H., 49; Shindler v. Houston, 1 Comst. 261; Meredith v. Neigle, 2 El. & Black. 363; Morton v. Tibbett, 15 Adolph & El. (N. S.), 428; Cusack v. Robinson, 1 Best & S., 297; Matthews v. Harris, 3 Jur. 1192; Cunningham v. Ashbrook, 20 Mo. 553.
A delivery of possession necessarily implies a change of the dominion and control over the property. Without an acceptance and receipt there can be no such thing as a de
It appears that the defendants had intended to transport the cattle on the railroad, had engaged cars, and had provided hay for their keeping. It does not appear that the railroad company was to receive the cattle into the charge of their agents on behalf of the defendants, whether at the cars, or at the stock pens, nor that it was the practice- of the company to do this in any case. The evidence goes no further than to show that the defendants had intended to receive them at the stock pens for transportation on the railroads under their own charge and control. But neither they nor any agent or servant of theirs was there on that day to receive them at all, and they were not received. In Cusack v. Robinson, 1 Best & Smith, 297, the goods were received at the warehouse appointed by the defendant into custody of his own agent, and were delivered out again upon his order. There was clear evidence of an acceptance and actual receipt of the goods in Matthews v. Harris, 3 Jur. 1192. The goods were delivered at the Plough Inn, where the defendant was to receive them, and where he boarded, to one of the servants at the inn, who actually received them, and might therefore be deemed and was deemed to be the servant of the defendant for that purpose. There clearly was no such delivery and receipt in this case. The plaintiff never parted with the possession of the property to any agent or servant of the defendants. His personal dominion over the cattle in charge of his own agent still continued as before.
The whole case depends upon this question. Now there can be no delivery but to some person. The personal dominion over the property must be transferred from the vendor to the vendee. If there had been any agent of the defendants at Dresden, or any person at the cattle pens, whether the servant of the defendants or of the railroad company, who was authorized to receive the cattle on behalf of the defend
It follows, from this view of the case, that the defendants’ instructions should have been given, and the plaintiff’s instructions refused.
Judgment reversed and the cause remanded.