20 Wend. 61 | N.Y. Sup. Ct. | 1838
The court below were right upon the evidence in charging the jury, that if the wheat was accepted by the defendant or his agent, they must find for the plaintiff the whole contract price. This was the only question that was at all open for the jury. If there had been no acceptance no action would lie. If there was an acceptance, it was obviously-connected with the special agreement, which fixed a price. It is said that was void by the statute of frauds. Be it so at the time 5 still it was good as a proposition of price, under which the plaintiff avowedly acted, and which the defendant did not revoke. He too, therefore, must be taken to have acted under it in receiving the wheat, unless the law would allow him to mislead the plaintiff by his silence. On a delivery, without any change of terms, even of part, a previous proposition to pay a certain price becomes binding. The part delivery need not by the statute, be made at the time of the contract. An oral agreement may stand for a mutually agreed proposition, and unless revoked, the subsequent acceptance of part of the goods which were the subject of the oral negotiation, will make it binding. The statute does not require that the part acceptance should be
It is said that in this case, the plaintiff’s wheat was emptied into a large bin of better quality ; and the defendant could not, therefore, return it; and damages are claimed for the manner of delivery. The plaintiff delivered the wheat at the place designated. It was opened and inspected by the receiver, who did object to its being mixed with the other wheat. Why did he not refuse absolutely to receive it, or direct it to be placed by itself, declining an absolute unqualified acceptance 1 The plaintiff answered, li the defendant has agreed for all my wheat.” It was mixed with the other, by the defendant’s agent, and he afterwards boats it away. It cannot be insisted, after what the jury have found, that it was not accepted by the defendant’s agent, and accepted generally. The defendant adopted all that the receiver had done. He takes and converts the plaintiff’s whole crop, pays him for the main bulk j but absolutely declines paying for a small portion received under the same contract at the same price with the other. We entirely approve of what Lord Ellen-borough, Ch. J. said in Fisher v. Samuda, 1 Campb. 190, 193. There the defendants had ordered beer from the plaintiff, for the purpose of its being shipped to Gibralter. On the arrival of the beer, it was discovered to be unfit; but kept some time before there was any offer to return it. In an action by the vendee upon the executory contract to deliver beer fit to be shipped, and a breach in not delivering such beer, Lord Ellenborough said, 66 It was the duty of the purchaser of any commodity, immediately upon discovering that it was not according to order, and unfit for
The merits being still with the plaintiff, admitting that all had been proved which the defendant below offered, it is not necessary to inquire into the other questions which arose at the trial. As to damage for any wrong done by putting the wheat in the bin with that of a better quality, and thus injuring the plaintiff, such special damages clearly could not have been set off. They were not covered by the notice of set-off, and, indeed, the defendant’s agents are rather the cause of the mischief themselves, in not directing another place for the wheat in question. This is said to have been done without the consent of the defendant. Hot so. If the receivers were not his agents, why did he adopt their acts 1 Campbell was his actual agent. He, too, inspected the wheat in the bin ; and the defendant’s boatmen afterwards took it away. Davis, who was a sub-agent of the defendant,' was present and actually participated in the delivery, without, as he says, inspecting the wheat particularly, though his attention must have been called to its inferior quality. He controlled the place of delivery.
The exceptions were not well taken, and the judgment must be affirmed.