68 Cal. 17 | Cal. | 1885
— This action was brought to recover damages alleged to have resulted to the plaintiffs, by reason of the breach by the defendants of a contract for thé sale of a certain lot of wool. The contract was oral, and no part of the price was paid. Under such circumstances, the contract is by the statute declared to be invalid unless “the buyer accepts and receives part of the thing sold.” (Civ. Code, sec. 1739.) “There must be not only a delivery of the goods by the vendor,” said the Court of Appeals of New York (47 N. Y. 452), “but a receipt and acceptance of them by the vendee liable for the price; and this acceptance must be voluntary and unconditional. Even the receipt of the goods, without an acceptance, is not sufficient. Some act or conduct on the part of the vendee, or his authorized agent, manifesting an intention to accept the goods as a performance of the contract, and to appropriate them, is required to supply the place of a written contract.” By the terms of the contract in the present case, the wool was to be delivered by the plaintiffs to the defendants at the railroad depot in Merced; but as has been seen, until there was a receipt and acceptance on
Judgment and order reversed, and cause remanded.
McKee, J., and McKinstby, J., concurred.