Remick v. Sandford

120 Mass. 309 | Mass. | 1876

Deyens, J.

To the instructions given, upon the theory of the plaintiff, that the sale of the goods was in the ordinary way, and not a sale by sample, with an implied warranty that the goods should be equal to the sample, no exception is taken. It was however contended by the defendants that the sale was by sample, and that there was no written memorandum of the contract (it being a sale of goods to the value of more than fifty dollars) such as is required by the statute of frauds. The broker’s note did not afford such evidence, as it omitted the important element of a warranty upon the sale, and, if such was the sale, was unauthorized. Remick v. Sandford, 118 Mass. 102. The plaintiff, to meet the theory of the defendants, and to avoid its effect, contended that the goods were accepted and received by the defendants, and that therefore, this being proved, no written memorandum of the contract was necessary, but that its terms might be proved by paroi.

As the verdict rendered was general, it cannot be ascertained whether the jury found for the plaintiff on the ground that the sale was not by sample, or on the ground that, although it was a sale by sample, yet that there had been an acceptance of the goods under the sale, and that they corresponded to the sample. It becomes necessary to inquire, therefore, whether the instructions were, upon the latter aspect of the case, correct.

These treat the delivery of the wool at the storehouse of the defendants, and its receipt therein by them, as a delivery and an acceptance on their part, sufficient, under the statute of frauds, to permit paroi evidence of the contract; but recognize that if, upon.examination, it was found not to correspond to the sample, the defendants might reject it, and take “ the position that there was no acceptance of the delivery of the wool on their part” such as the statute requires. The right to reject the wool, thus accorded to the defendants, is only the same right which they would have had if it had been sold by sample and a written memorandum thereof made. They could then have returned it after delivery, and defended successfully against an action for its price, if it failed to correspond to the sample. The wool having been taken into the defendants’ warehouse, the question whether there was an acceptance and receipt was thus made to depend upon whether it should have been accepted, inasmuch as it corresponded to the contract.

There may undoubtedly be an acceptance, which will not afford conclusive evidence that the contract has been fulfilled and its terms complied with, and which will yet satisfy the statute and let in evidence of those terms, which otherwise could only be proved by writing. If the buyer accepts the goods as those which he purchased, he may afterwards reject them, if they are not what they were warranted to be, but the statute is satisfied. But, while such an acceptance satisfies the statute, in order to have that effect it must be by some unequivocal act done on the part of the buyer, with the intent to take possession of the goods as owner. The sale must be perfected, and this is to be shown, not by proof of a change of possession only, but of such change with such intent. When it is thus definitely established that the relation of vendor and vendee exists, written evidence of the contract is dispensed with, although the buyer, when the sale is with warranty, may still retain his right to reject the goods if they do not correspond with the warranty. Morton v. Tibbett, 15 Q. B. 428. Johnson v. Cuttle, 105 Mass. 447. Knight v. Mann, 118 Mass. 143, and cases cited.

That there has been an acceptance of this character, or that the buyer has conducted himself, in regard to the goods, as owner, (as by a resale, which would deprive him of the option to take or decline them, and which is of itself an acceptance,) is to be proved by the party setting up the contract. It cannot be inferred, as matter of law, merely from the circumstance that the goods.have come into the possession of the buyer. All that the ruling gives to the defendants is the right to reject the goods if they did not correspond to the sample, which they would have had by the common law, even if there had been a written memorandum. But they had more than this, as there was no such memorandum; they had a right arbitrarily to refuse the acceptance of the goods, unless they did or had done some act in relation to them consistent only with their own ownership, and inconsistent with that of the seller. The circumstances under which they received the goods, and the manner in which they acted in reference to them, were to be considered as evidence. These might show that they received the goods with the intent to accept them, as being the goods they purchased, and as the owners of them, but they might also show that they received them only for the purpose of examination. A receipt for such a purpose is not inconsistent with their continuing still the property of the seller. Hunt v. Hecht, 8 Exch. 814. Curtis v. Pugh 10 Q. B. 111. Exceptions sustained.