61 Md. 389 | Md. | 1884
delivered the opinion of the Court.
On the 18th of September, 1882, T. Francis Hall, trading as T. Francis Hall & Co., ordered through one Richards, salesman for the appellee, a bill of merchandise, amounting to 8364,00. The goods were sold on a credit of sixty days to be delivered in Baltimore. At the time the order was given, the following memorandum in writing was made, by Richards:
“ T. F. Hall & Co., 88 South Charles St., Baltimore, Maryland.”
Then follows an itemized statement of the goods thus ordered and the prices agreed to be paid for the same. Richards says the memorandum was made in order that the appellee might fill the order, and for no other purpose. It was neither signed by him nor by Hall. On the same day Richards mailed the order directed to the appellee at Providence, Rhode Island, by whom it was received on the 19th of September. On the 20th of September Hall made an assignment to the appellant of all his property,
Two questions arise in this case : First. Was there a note or memorandum in writing of the contract of sale within the 17th section of the Statute of Frauds? By the common law all that was required to give validity to a sale of personal property, whatever may have been the amount or value, was the mutual assent of the parties to the contract. This once established by evidence, either verbal or written, that the one should transfer the absolute property in the thing to the other for a money price, the contract was completely proven and binding on both parties. To prevent Frauds and Perjuries, however, the 17th section of the Statute of Frauds provided that no contract for the sale of goods, &c., of the value of ten pounds or upwards should be valid, except the buyer shall receive and accept part of the goods so sold, or give something in earnest to bind the bargain or in part payment, or that some note or memorandum in writing of the said barg’ain be made and signed by the parties to be charged or their agents thereunto lawfully authorized.
We come now to the next and the more important question. Was there a delivery and acceptance of the goods? They had been shipped by the appellee in pursuance of Hall’s order, and they had arrived at Baltimore, and all that was necessary to complete the sale was an acceptance by him or by his agent. Unless then the assignment by Hall operated as a revocation of the
The same principle applies to the case of a voluntary assignment for the benefit of creditors. Here Hall conveyed to the appellant all his property of every kind and description, whether in possession or expectancy, for the benefit of his creditors, without preference or priority, and without exacting releases. The assignment did not interfere with, much less avoid, contracts made between Hall and other parties. On the contrary his rights and' interests under such contracts passed to the assignee. ' In all fairness it may be said the appellant ought in this case to have refused to accept thé goods and so notified the appellee. This may be true, but in other cases where the property is of a perishable character, and could not be returned without great loss, it may be to the interest of the seller that the assignee should accept and thereby complete the sale. But be this as it may, this case, like all other cases, must be governed by the general principles which lie at the bottom of all sales of personal property. The seller may before parting with the property provide against loss, but if he sees proper to sell on credit, relying on the ability of the buyer to pay, the law cannot in all cases protect him.
The case of Conyers, et al. vs. Ennis, et al., 2 Mason, 236, decided by Judge Story, is somewhat analogous to the one now before us. There Rousmaniere, a merchant of Newport, Rhode Island, on the 4th of May ordered of the
“Nothing is better settled,” said Judge Stoby, “if an uninterrupted series of authorities can settle the law, than the doctrine, that the vendor in cases of insolvency, can stop the property only while it is in its transit. If it has once reaohed the consignee, there is an end of all right to reclaim it as a pledge for the payment of the purchase money. If the doctrine were to go the length now contended for, it is far from certain that it would promote public convenience or policy. Where could we stop ? Gould it be applied with safety to purchases made at any distance of time, if it should turn out in the event, that the buyer was then insolvent ? ”
In this case the goods were not only delivered to the appellant, but the appellee with knowledge of the assignment forwarded his claim to the assignee to be filed for distribution. There is no ground on which an action of trover can be maintained against the appellant. The Court erred therefore in granting the appellee’s prayer, and we must reverse the judgment without awarding a new trial.
Judgment reversed, without awarding a new trial.