39 Me. 98 | Me. | 1855
— This is an action of assumpsit in which the plaintiffs seek to recover of the defendant the price of two hundred and eighty-four tons of coal, alleged to have been shipped at Philadelphia on board the schooner Gen. Hersey.
From the evidence, as reported, it appears, that one of the plaintiffs, who are merchants residing at Philadelphia, called on the defendant at Portland and proposed to sell him a quantity of coal; that the price was to be $3,65, per ton; that after some conversation on the subject the defendant said “ well, you may send me a cargo ;” that something was said about sending a vessel from Portland, but the bai’gain as finally concluded was, that the plaintiffs should procure a vessel and send defendant a cargo. There was no limit as to the size of the vessel.
The coal was shipped by the plaintiffs on board a vessel chartered by them and consigned to the defendant, and the master signed a bill of lading in the usual form, engaging to deliver the coal to the defendant upon his paying freight. The vessel was cast ashore on Cape Henlopen; part of the cargo was thrown overboard to lighten the vessel; the master then took the vessel back to Philadelphia, called a survey, and it being considered advisable to sell the balance of the cargo, it was done, and due notice was given thereof to the plaintiffs and defendant, neither of whom acknowledged the notice or made any answer thereto.
The defence rests upon the statute of frauds, R. S., c.
From the language of this statute it is apparent, that when there is no written contract, a mere delivery will not bo sufficient. There must further be an acceptance by the purchaser, else he will not be bound. In Balding v. Parker, 2 B. & C. 37, “ it was formerly considered,” observes Rust, J., “that a delivery of goods by the seller was sufficient to take a case out of the 17th section of the statute of frauds; but it is now clearly settled, that there must bo an acceptance by the buyer as well as a delivery by the seller.” In Tempest v. Fitzgerald, 3 B. & Ald. 680, the defendant, in August, 1817, bargained for a horse which he was to take away about Sept. 22, following. The parties understood it to be a ready money bargain. On Sept. 20, the defendant used the horse, gave directions respecting it and requested the plaintiff’s son to keep it for him another week, which he engaged to do. The horse died on Sept. 26, and the defendant refusing to pay for the horse, an action for its price was commenced, but it was held, that no right of property passed till the price was paid, and that the action could not be maintained.
In Holmes v. Haskins, 9 Exch. 752, the defendant verbally agreed to purchase of the plaintiff some cattle then in Ms field. After the bargain was concluded, the defendant
The language of the statute is unequivocal, and requires the action of both parties. There must be acceptance as well as delivery. The property of the goods must vest in the vendee as their absolute owner, discharged of all lien, and so that he shall be precluded from taking any objection to the quantity or quality of the goods sold. Shindler v. Houston, 1 Coms. 261; Outwater v. Dodge, 6 Wend. 400.
Exceptions overruled.