62 N.J.L. 544 | N.J. | 1898
The opinion of the court was delivered by
This action was brought to recover the price of two mechanical boiler-cleaning appliances — $150 each. At the Circuit a verdict was rendered for the plaintiff for the price, on which a rule to show cause was granted. On the hearing of the rule the court directed a re-argument on two
These appliances are a patented article manufactured by the plaintiff and designed to be attached to boilers for the purpose of cleaning them. The attachment to a boiler is comparatively inexpensive, and the appliances can be readily detached and laid aside. The contract for the purchase was negotiated between Randolph, the agent of the plaintiff, and Martin, who ■was the agent of the defendants. The proof in the case was •that they were attached when the boilers were not in use. ■One was attached on Sunday in the latter part of October and the other on the succeeding Sunday.
The evidence touching the contract under which these appliances were attached to the defendants’ boilers is conflicting. The plaintiff’s agent, by whom the arrangement was made, testified that he was a canvasser for the Mechanical Boiler Cleaner Company, and that he went to the defendants’ place of business in the city of Newark, to find out who had charge of the steam power in that concern, and that he was referred to Mr. Martin ; that he was there a number of times, and there were always excuses on Mr. Martin’s part, saying he was not quite ready to have the cleaners put in; he was going to make some alterations, and that he had put him off from time to time, and finally Mr. Martin took him and introduced him to Mr. Pangborn, the chief engineer. Pang-born seemed to think very favorably of it and said he would tell Mr. Martin about it; that he went a day or two after that to see Mr. Martin, but Martin was too busy to talk with him and told him to come again; that he went there the next day ■or the second day after and saw Martin, “and he told me to put on the appliances on each of the two boilers;” that at that time he, the agent, filled out one of the company’s regular orders for these appliances and handed it to Mr. Martin to sign, and Mr. Martin read it over and said he would not sign
• Martin, the agent of the defendants, testified that Randolph came to the defendants’ store to effect a sale of these cleaners several times. He testified to the arrangement by which the plaintiff was allowed to attach its cleaners in these words: “I said, ‘you might put one in on trial, but I won’t promise you to keep it.’ And he (Randolph) said, £ we can put it in on trial; it don’t make any difference; we will put it on trial; you don’t have to keep' it.’ And Randolph then said, ‘ here is an order to sign.’ And I said, £Oh no, not on your life; if that cleaner does what you claim it does, and we conclude to keep it, all right, but I won’t give you $150 for it.’ There was nothing said about the cleaner being satisfactory, but that it was put in with the understanding that if we wanted it we would keep it.” Scoville, the secretary of the company, testified that when he called on Martin to get pay for the cleaners, to the question whether Mr. Martin gave any reason for saying that they didn’t want them, or gave any reason why they
The evidence further shows that subsequently the cleaners were detached, about the middle of January, after notice to the plaintiff that the defendants were not going to keep the appliances and that they should take them out, giving them a certain day to come and take them out, and notifying them that if they did not come and take them out, then “ we would take them out ourselves and charge them.”
The plaintiff’s counsel contends' that this transaction was not a contract of sale within the statute of frauds, and that recovery may be had for the work and labor and materials.
The contract in question was an executory and not an executed contract of sale. It is undisputed that the property in the goods did not vest in the defendants upon the delivery. The appliances were affixed to the defendants’ boilers on trial, upon terms that the sale was to be absolute upon certain conditions, either that they were to accomplish a certain purpose or that the defendants were at liberty to take the appliances or not, even if the appliances did accomplish all that was represented. A contract of this character is an executory contract of sale. Smith v. York Manufacturing Co., 29 Vroom 242.
The sixth section of the statute of frauds invalidates every contract for the sale of goods, wares and merchandise for the price of $30 or upwards, unless, first, a note or memoranda of such contract be made in writing and signed by the'party to be charged thereby or by his agent thereunto lawfully authorized ; or, second, unless the buyer shall accept part of the goods so sold and actually receive the same; or, third, unless the buyer shall give something in earnest to bind the bargain or pay some part of the purchase-money. Gen. Stat., p. 1603. The statute applies to executory as well as to executed contracts. In Towers v. Osborne the defendant had “ bespoke a chariot,
In applying the statute a distinction is made between a contract for the sale of goods already manufactured and a contract for mere work and labor and materials. That the former is within the statute is universally admitted. It is also conceded that contracts which are essentially contracts for work and labor and materials are not within the statute. With respect to the latter class, distinctions have been made which have operated to fritter away the benefits of the statute; for instance, where articles are ordered from a manufacturer and work is to be done upon them to fit them for delivery in compliance with the contract. In some cases such a transaction
In Pawelski v. Hargreaves, the facts were these: The defendants, who were about to enter the brewing business, applied to the plaintiffs, who were wagon manufacturers, to build three trucks. The plaintiffs were too busy to undertake to make them, but agreed to furnish them from the Milburn Wagon Company’s works, at Toledo, Ohio, with whom they had dealings. The order was given ; the trucks when finished were shipped to the plaintiffs’ factory, and some slight alterations were made by the plaintiffs at the defendants’ request in painting and lettering the trucks for the defendants’ use. The defendants refused to take the trucks. The plaintiffs paid the Milbnrn Wagon Company the published price for them and brought suit. At the trial the defence was the statute of frauds. The Court of Errors and Appeals held that the contract was within the statute of frauds and sustained the defence. Mr. Justice Seudder, in delivering the opinion of the court, said: “The attempt to draw the facts of this case into the disputed realm of what are sales within the statute and what are contracts for work and labor without the statute, which has been so well discussed in the case of Finney v. Apgar, 2 Vroom 266, is not satisfactory. The
In the opinion of Mr. Justice Seudder in the case last cited he refers to two conditions — -first, where the chattel sold is in solido, and, secondly, where it is not distinguished from the general business in which the vendor is engaged. On principle the statute of frauds applies to a contract in either of these aspects, both to an agreement for the sale of a chattel on hand and for sale and to an agreement for the manufacture of an article to be made in the course of the general business in which the vendor is engaged. Such plainly is the view entertained by Chief Justice Beasley as expressed in Finney v. Apgar. In either case if the article is delivered and accepted the action would be on a contract of sale and not upon an agreement for work and labor and materials.
The Chief Justice, in Finney v. Apgar, in defining the transactions that were not within the statute, but were contracts for work and labor and materials, comprises within the latter a contract for an article not existing at the time, when such an article is to be made to order and as a thing distin
Atkinson v. Bell has been regarded as a ruling case in the English courts. The concluding passage in the opinion of Mr. Justice Bayley has been criticised. Mr. Benjamin says: “ It is no doubt too broadly expressed; for, although generally, it is not universally the case that an action for work and labor will not lie when performed on materials that are the property of the workman.” 1 Benj. Sales (Corbin’s ed.), § 99. In other respects the opinion of Mr. Justice Bayley has been adopted in the English courts. Cases of which Clay v. Yates, 1 Hurlst. & N. 73; Grafton v. Armitage, 2 Com. B. 336, and Lee v. Griffin, 1 B. & S. 272, are types, are readily distinguishable from contracts of sale. The first two are obviously the cases Mr. Benjamin had in mind in his criticism of the opinion of Mr. Justice Bayley, in Atkinson v. Bell. In Clay v. Yates the defendant contracted with the plaintiff, a printer, to print for him a second edition of a work of which he was the author. The plaintiff found the materials, including the paper. Although the work and labor in that instance was bestowed on materials furnished by the plaintiff, the contract was held by the court not to be a contract for the sale of goods. Baron Martin, in delivering his opinion, said : “The defendant intends that the printer shall use his types and that he shall set them up by putting them in a frame; that lie shall print the work on paper, and that the paper shall be submitted to the author; that the author shall correct it and send it back to the printer, and then the latter shall exercise labor again, and make it into a perfect and complete thing in the shape of a book. I think the plaintiff was employed to do work and labor and supply materials for it, and he is to be paid for it, and it really seems to me that the true criterion is this: Supposing there was no contract as to payment, and the plaintiff had brought an action and sought to recover the value of that which he had deliverd, would that be the value of the book as a book ? I apprehend not, for the book might not be worth half the value of the paper it was written on. * * *
There is some difficulty in adjusting the rule laid down, or rather its application, in Lee v. Griffin with the decision in Clay v. Yates. In Lee v. Griffin, the action was against the defendant as executor of Frances P., deceased, for goods sold and delivered and for work and labor provided by the plaintiff as a dentist for the deceased. It was proved at the trial that the plaintiff had, in pursuance of an order from the deceased, prepared a model of her mouth and made two sets of
The English, Massachusetts and New York rules on this subject are stated by Commissioner Dwight in Cooke v. Millard, 65 N. Y. 352.
It would be useless to attempt to reconcile the American eases on this subject. It is sufficient to say that the transaction in this case was clearly a contract of sale within the English rule, and within the rule adopted in this state as deduced from Finney v. Apgar and Pawelski v. Hargreaves. The thing contracted for was a patented article, in the manufacture of which the plaintiff was engaged, and it must be inferred from the testimony that the machines attached were either part of the stock of the plaintiff on hand at the time, or were to be manufactured by the plaintiff in the regular course of its business. A suit for work and labor and materials would be wholly inapplicable to a recovery under these circumstances. The pleadings, also, are framed on the theory of a contract of sale.
The question as to what is an acceptance and actual receipt of goods within the purview of the statute is one on which the decisions are at variance. These propositions may be considered as settled by the great weight of authority in England, as well as in the courts of this country, and the doctrines embraced in them accord with the reasons which gave rise to this important statute. First, the statute is not complied with unless two things concur — the buyer must accept and actually receive part of the goods and the contract will not be good unless he does both. Second, there may be an actual receipt without acceptance and an acceptance without a receipt — an acceptance to be inferred from the assent of the buyer, meant by him'to be final, that the goods are to be taken by him as his property under the contract. Third, it is immaterial whether the buyer’s refusal to take the goods be reasonable or not. If he refuses the goods, assigning grounds false or frivolous or assigning no reasons at all, it is clear that he does not accept the goods. The question is not whether he ought to accept, but whether he has accepted them. Fourth, the question of acceptance or not is a question as to what was the intention of the buyer as signified by his outward acts' These
In Finney v. Apgar the contract between the parties was for the delivery of spokes “ at the dockyard below Brookville, the plaintiff to pile them up on the left-hand side of the road.” This was done by him. Although it was a delivery in compliance with the contract, the court- held that it was not an acceptance within the statute. Morton v. Tibbett was approved. A like decision was made in Pawelski v. Hargreaves. In that case it appeared that after the trucks were received at the plaintiffs’ factory some slight alterations in them were made by the plaintiffs at the defendants’ request, and that the defendants had engaged a painter to paint and letter the trucks. The rule deduced from these cases as the rule in force in this state is the English rule, that to constitute an acceptance there must be an acceptance by some unequivocal act with intent to take possession of the goods as owner.
The question of acceptance and actual receipt, being one of fact, will depend upon the circumstances of the particular case. Whether the acts which the buyer does or forbears to do amount to an acceptance and receipt within the statute of frauds is a question for the jury ; but where the facts in relation to a contract of sale within the statute of frauds are not
The rule to show cause should be made absolute.