Beedy v. Brayman Wooden Ware Co.

Bird, J.

This action is brought to recover the price of a quantity of hay alleged to have been sold by plaintiffs to defendant. The defense is the statute of frauds. The case is before this court upon report, such judgment to be rendered upon such of the evidence as is legally admissible as the law and evidence require.

There may be a complete delivery at common law without either receipt or acceptance under the statute. The former is the act of the vendor while receipt, which affects the possession, and acceptance, which affects the title, are the acts of the purchaser and both receipt and acceptance are essential. Nor can such receipt and *203 acceptance be shown by words alone, where such words are part of the alleged oral bargain and sale. But receipt and acceptance need not be contemporaneous with the alleged contract, if made in pursuance of it, nor need they be simultaneous. The former may precede or follow the latter. No act of the vendor alone can be effective to make delivery, without receipt and acceptance, take the case out of the statute. If the vendee does any act to the goods, of wrong, if he be not their owner, and of right, if he be their owner, the doing of the act is evidence that he has accepted them. These principles are so well established as to require no citation of authorities.

In the case at bar, the alleged bargain and sale was not of certain specified goods selected and accepted by the purchaser or its agent but of a certain quantity of goods to be selected by the vendors from a larger mass. The separation of the hay alleged to have been purchased and its deposit outside the barn were the acts of the vendors. Although, from the evidence as to the manner of payment and the subsequent relation of the vendors to the property, we think no lien for the price was retained, it is needless to state that neither receipt nor acceptance can be found from such acts of the vendors: Edwards v. G. T. R. Co., 54 Maine, 105, 112; Shepherd v. Pressey, 32 N. H. 49, 55-56; Knight v. Mann, 118 Mass. 143, 146 . Whether the act of the agent of defendant in directing one of its employees to go and remove the hay after it was placed outside the barn was a receipt by defendant, we need not decide as, even if it were, there was no actual acceptance: See Howe v. Palmer, 3 Barn. & Ald. 321. The purchaser still had the option to object to the quantity, quality or identity of the goods.

It is uncontradicted that defendant directed its agent to offer the hay for sale to a certain party who refused the offer. Clearly constructive acceptance and receipt may arise from dealing with the goods as owner, as by the purchaser reselling or pledging the goods. The first case of this character is the familiar one of Chaplin v. Rogers, 1 East, 192, where, a stack of hay being sold by parol to the defendant, he, without paying for it or removing it, resold a part of it to another who took it away. And Kenyon, J., speak *204 ing for the Court of King’s Bench says, "Here the defendant dealt with the commodity afterwards, as if it were in his actual possession, for he sold part of it to another person.” Id. page 194. In Benjamin on Sales, this case is cited as authority for the position that a resale is evidence of a constructive receipt as well as of constructive acceptance; §§ 145, 182. See also Morton v. Tibbett, 15 C. B. 428. In Blenkinsop v. Clayton, 7 Taunt. 597, it was held that if a person who has contracted for the purchase of goods offers to resell them, there is evidence of an acceptance and receipt of the goods which should be submitted to the jury. In ex parte Safford, it is said, "The cases are many where a sale, or a mere offer to sell, or a request by the vendee to the vendor to sell on his account, and various other acts óf ownership have been held sufficient for that purpose (receipt) though the goods remained in the actual possession of the vendor, or of a middle-man..... It may be said that a resale would be a fraud on the vendor, if the goods are not the property of the vendee, and for this reason the latter is estopped; but the true reason is, that such an act is of itself evidence of acceptance and receipt:” (Lowell, J.) 2 Low. 563, 566 ; 21 Fed. Cases, pages 142, 143. See Garfield v. Pans, 96 U. S. 557, 563 ; Bowe v. Ellis, 22 N. Y. Supp. 369, 371 .

Smith v. Surman, 9 B. & C. 561, has been relied upon as holding that an offer to sell is not evidence of acceptance and receipt, but there it was distinctly held that it did not appear that the seller had lost his lien for the price. And in Jones v. Bank, 29 Md. 287 , where the goods had not arrived at the place of delivery, it was held that resale of, or offer to sell, goods of the same character was neither an acceptance, nor receipt. Clarkson v. Noble, 2 U. C. Q. B. 361, which holds that an offer to sell is not such dealing with the goods as to constitute acceptance, is based wholly upon the authority of Smith v. Surman, ubi supra. And it has been held that an offer by the purchaser to sell certain logs, which were to be manufactured into boards by the seller, was not a constructive receipt and acceptance but upon the ground that the original contract was one for the sale of boards and not of logs: Gorham v. Fisher, 30 Vt. 428, 431 .

*205 In reason we fail to distinguish between a sale and an offer to sell. There is no difference in so far as the act of the alleged purchaser is concerned. He does no more than offer the goods in either case. Whether, when he has made the offer, his offer becomes a sale in fact depends upon the action of a party who bears no relation to the parties, inter se, to the original alleged sale. In either case his act is equally an assertion of ownership.

We conclude that upon the uncontradicted evidence we must find such an acceptance and receipt of the hay as satisfies the requirements of the statute of frauds and that plaintiffs are entitled to recover of defendant the sum of eighty-five dollars and sixty-three cents ($85.63) with interest from the date of the writ, there being no evidence as to the date of demand made by plaintiffs upon defendant before suit brought.

Let judgment be entered for the plaintiffs for the sum of ‡85.63 with interest from the date of the writ.