Knight v. MannKnight v. Mann
- Reporters:
- ,
- Before:
- Endicott
This was a contract for the sale of goods for a price exceeding fifty dollars; no money was given in part payment or tо bind the bargain, and no memorandum in writing was made and signed by the defendant. Gen. Sts. o. 105, § 5. And the only question presented is whether, on the facts repоrted, there was any evidence on which the presiding judge could find *144that the defendant received and accepted the goods, and is liable in this action or for goods sold and delivered.
It appears that the plaintiff had a large number of rough calf skins fоr sale which were in bales at his store. The defendant went to the store November 6, 1872, and after examining some thirty or forty skins, entered intо an oral agreement with the plaintiff to purchase six hundred and thirty-nine skins at so much per pound. The sale was on time, and the defеndant was to send for and take the skins from the store. He directed them to be counted out from the skins, then lying in bales, weighed and set apart for him. The plaintiff did this at once. According to the usage of the trade in the sale of these goods, one in twenty of the skins is selected as “ trials,” so called, and spread upon the floor, and in that way exposed to the air for some time. These “ trials ” are weighed, both before and after they are so exposed, and any shrinkage in weight is noted. The percentage of shrinkage, so ascertained in the “ trials,” is deducted from the gross weight of all the skins sold, to determine the number of pounds to be paid for.
On the mоrning of November 9, the defendant called and asked if the skins were ready, and the plaintiff replied, “ Yes, all but weighing the trials.” The defendаnt said he would send for them immediately. The trials were then weighed, the net weight of the six hundred and thirty-nine skins ascertained, and they were plаced in a doorway of the store for the defendant to remove. The defendant returned on the same day at noon, asked for the bill, which was given him, and was told that the skins were ready for delivery and were lying in the doorway. He then left, but did not send for the skins, and on that night they were destroyed in the great fire. There is no evidence that he then said he would send for them, or in words accepted them, or did any act in relation to the goods after he took the bill and received the notice that they were ready for delivery. It is аdmitted that he never saw the skins, after he bargained for them, when they were lying in bales with others of a like description. It is also agreed that the plaintiff had done all that he was required to do by this agreement.
A sale of goods for fifty dollars and upwards, without á memorandum оr earnest money, cannot be enforced, except upon re*145(seipt and acceptance by the buyer. Until such rеceipt and acceptance, no action can be maintained. When these acts are done, the sale may be enforced according to the terms of the oral agreement. The test, therefore, whether there is a binding contraсt within the terms of the statute is, whether there was a receipt and acceptance in pursuance of the previous agreement. When the seller has done all that is required of him by the oral agreement, it is for the buyer to determine whether he will accept. He may refuse or neglect to do so, he may do this unreasonably, assigning insufficient reasons, or giving no reasons at all; the question is not why he did not, or whether he ought to accept, but whether he did accept. Benjamin on Sales, (Am. ed.) § 139. And whether he has accepted is to be determined in every case by his acts. All the cases agree that the receipt and acceptance of goods to satisfy the terms of the statute must be proved by clear and unequivocal acts on the part of the buyer. Davis v. Eastman, 1 Allen, 422. Denny v. Williams, 6 Allen, 1. Johnson v. Cuttle, 105 Mass. 447. Mere delivery is not sufficient; there must be actual acceptance by the buyer by dealing with the goods as owner. Phillips v. Bistolli, 2 B. & C. 511.
In this case, thе contract was not for the purchase of a specific ascertained chattel which the buyer inspected and еxamined at the time of the agreement; but for the purchase of skins to be selected by the seller from a larger number of similar skins lying in bаles, and to be set aside and sent for by the buyer. In such case there can be no acceptance before the gоods are delivered and the buyer has an opportunity to examine. Cusack v. Robinson, 1 B. & S. 299. Bog Lead Mining Co. v. Montague, 10 C. B. (N. S.) 481. To hold the defendant liable, such an acceptance must therefore be found to have been made by him‘after the delivery of the skins by the plaintiff. Till that time the defendant was not called upon to exercise his option, and that time did not arrive till after the weighing of the “ trials,” the delivery of the bill, and the placing of the goods in the doorway, of which he had notice. Before that, the defendant had no opportunity of rejecting the goods, as they had not been delivered. Coombs v. Bristol & Exeter Railway, 3 H. & N. 510. Everything, therefore, that happened previously, related to the oral agrеement for a sale, which could only be completed when the goods were ready foi *146delivery. In Dole v. Stimpson, 21 Pick. 884, the defendant, when he accеpted the plaintiff’s offer, stated that he considered the property to be his, and would send for it when ready, and pay for it. When rеady, he did not send for it, and it was held there was no acceptance.
In examining the evidence reported, we find no clear and unequivocal acts on the part of the defendant indicating an acceptance after the plaintiff had рerformed what his oral agreement called for. The clear and unequivocal acts, showing an acceptancе, or from which an acceptance may be inferred, must relate to some dealing with the property itself by the buyer or his authоrized agent after the delivery of the whole or part of it. Snow v. Warner, 10 Met. 132. Marsh v. Hyde, 3 Gray, 331. Ullman v. Barnard, 7 Gray, 554. Ross v. Welch, 11 Gray, 235. Morton v. Tibbett, 15 Q. B. 428. Chaplin v. Rogers, 1 East, 192. Blenkinsop v. Clayton, 7 Taunt. 597. Currie v. Anderson, 2 E. & E. 592. There is no evidence that the defendant did anything in relation to the рroperty after the delivery.
Nor does it appear that the defendant made the plaintiff his bailee. If he did, it would be evidence that he had accepted the goods, or had waived his right to reject. To establish this fact, there must be some evidence of a change in the relations of the parties to each other; as in Weld v. Came, 98 Mass. 152. The presiding judge therefore erred in ruling that upon the facts there was an acceptance, as well as a delivery, and that the plaintiff held the goods for the defendant as bailee.
Exceptions sustained.