| Mass. | Mar 15, 1868
The contract upon which the plaintiffs sue was a contract for the sale of merchandise, for the price of more than fifty dollars. There was no memorandum of the contract in writing, and it was therefore not a valid contract, unless the defendant accepted and received some part of the merchandise. Gen. Sts. c. 105, § 5. The only acceptance relied upon was a constructive acceptance by the receipt of the bill of lading. But whatever might be the effect of the receipt of a bill of lading, with the intention and for the purpose of thereby assuming the ownership and control of the property therein described, we are unable to find upon the evidence reported that the defendant ever accepted the bill of lading itself. It was left with his clerk, when the defendant was sick and absent. There is no evidence that his clerk was authorized to receive and accept it. Before the defendant knew that it had been left, he had notified the plaintiff through bis agent that he would not receive the cargo. On the day on which he learned from his clerk that the bill of lading had been left at his place of business, he repeated the notice to the plaintiffs, and by the next day’s mail directed the bill of lading to be returned to them ; which was immediately done. There is no authority for the proposition that the delivery to the carrier would pass the title in the cargo to the defendant, and the case of Frostburg Mining Co. v. New England Glass Co. 9 Cush. 115, is a direct decision to the contrary. There was therefore not even a constructive acceptance. The defendant never received the bill of lading with an intent to accept it, or assume any ownership or control of the merchandise.
Exceptions overruled.