1 Denio 48 | Court for the Trial of Impeachments and Correction of Errors | 1845
This action was brought to recover the price of the lumber in question, as for lumber sold and delivered. It is resisted principally on the ground that the contract is within the statute, (2 R. S. 136, § 3,) by which it is enacted, “ Every contract for the sale of any goods, chattels or things in action, for the price of fifty dollars or more, shall be void unless, 1. A note or memorandum of such contract be made in writing and be subscribed by the parties to be charged thereby: or 2. Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action: or 3. Unless the buyer shall, at the time, pay some part of the purchase money.”
There was no money paid, or note or memorandum in writing of the contract made. The plaintiff insists that the purchaser accepted and received the lumber; while on the other side it is contended that the sale was upon condition that the vendor should produce to House the inspector’s bill of the lumber, and before the contract could be deemed to be consummated by delivery and acceptance, the bill must be produced. It is a principle well established that in contracts for the sale of personal property, when no time is agreed on for payment of the price, the delivery and payment are to be simultaneous acts; but if the vendor does deliver freely and absolutely and without any fraud on the part of the vendee, the condition of payment simultaneous with the delivery is waived, confidence is reposed, credit is given and the property passes. (Chapman and another v. Lathrop, 6 Cowen, 110; Conyer v. Ennis, 2 Mason, 236 ; Ward v. Shaw, 7 Wend. 404.)
Two things are essential to the transfer of the title to personal property upon a cash sale, payment by the vendee and an actual or constructive delivery by the vendor. The first may be waived by the vendor, and an absolute delivery is such waiver; but a delivery subject to the condition of payment is not. On the question of delivery, it is a principle which is to be found in all the cases, that where in an agreement for sale of personal property, something remains to be done as between vendor and vendee, for the purpose of ascertaining either quantity, value
Was there an absolute delivery of the lumber in this case, or such evidence of delivery as was proper to be submitted to the jury, from which they would be justified to find that there was such delivery ? The delivery to satisfy the statute may be either actual or constructive, and may be inferred from circumstances. (Chaplin v. Rogers, 1 East, 192.) Delivery in a sale may be either real, by putting the thing sold into the possession or under the power of the purchaser, or it may be symbolical, where the thing does not admit of actual delivery; and such delivery is sufficient and equivalent in its legal effects to actual delivery. It must be such as the nature of the case admits. It has been held that the consent of the parties on the spot is sufficient possession of a column of granite, which by its weight and magnitude was not susceptible of any other delivery, and the possession was taken by the eyes and the declared intention. So where the vendor takes the vendee within sight of ponderous articles, such as logs lying within a boom, and shows them to him, it was held to amount to a delivery, though the vendee suffered them to lie within the boom, as was usual with such property, until he had occasion to use them. (2 Kent's Comm. 500, 501, 4th ed.; Jewett v. Warren, 12 Mass. Rep. 300.)
I cannot doubt but that when the defendant had made his offer for the lot of lumbei’j and the plaintiff had agreed to accept it, and declared the lumber to be his, the contract of sale was complete, by which the lumber was transferred to the defendant upon condition that he then paid the price or procured a credit or further time in which to pay. Did he do either ? He did not pay, but he proposed to Houston to make payment through his agent House, when he, Houston, should get and present to House the bill of inspection made by and in me hands of the inspector—to which, from the circumstances, it
The judgment must be affirmed.