Majority
p. 141Hague and another vs. Porter.
Headnote
A count for goods sold and delivered is not sustainable without proof of a delivery either actual or constructive.If the vendee of goods order them to be forwarded by a carrier, though he do not name him, a delivery to a carrier will enure as a constructive delivery to the vendee, and thus satisfy the count for goods sold and delivered. Per Cowen J.
But a delivery to a carrier, without the consent of the vendee either express or implied, will not enure as a delivery to the latter.
The vendee’s consent that the goods shall be sent by a carrier, may be implied from the-usage of trade. Per Cowen J.
The case of Downer v. Thompson, ( 2 Hill, 137 ,) commented on and explained.
P. agreed to take a lot of lamps of H. & R., and at the same time ordered a larger quantity of a similar description, which were to be made and delivered as soon as practicable—the price o'f the whole to be at the rate of $13 per dozen. The first parcel was paid for and delivered; and, while the others were manufacturing, P. desired an alteration'in their structure, which was made. After the lamps were complete, they were boxed up and sent by a carman to the store of P., who refused to receive them. Held, that the contract, in respect
p. 142
to the different parcels, was distinct; and that H. & R. could not recover, under a count for goods sold and delivered, the value of those which P. refused to receive.^
And semble, a count for goods bargained and sold could not he maintained under such circumstances. Per Cowen J.
The count should be special, for a refusal to accept the goods. Per Cowen, J.
Error to the New-York C. P., where Hague & Redfield sued Porter to recover the value of one hundred lamps alleged to have been sold by the plaintiffs to the defendant. The declaration was for goods sold and delivered. Plea, non assumpsit. The case was this: On the 27th of August, 1840, the defendant, a merchant of the city of New-York, agreed to take of the plaintiffs, who were engaged in business at Newark, N. J., two dozen side-lamps in one lot. These were paid for and delivered to the defendant. At the time of making this agreement and before the delivery of the two dozen, which wrere wanted immediately, the defendant ordered one hundred more lamps of the same kind, which were to be made and delivered as soon as practicable. The price of the whole was agreed on at the rate of |13 per dozen. On the 4th of September following the defendant wrote to the plaintiffs suggesting an alteration that he wished to have made in the construction of the lamps, in question. After being completed according to directions, they' were boxed up and sent by a carman to the defendant’s store. The defendant refusing to receive the lamps, they were left on the side-walk ; and the present action was brought to recover the agreed price. The court below directed a nonsuit, on the ground that there was no proof of a delivery of the lamps. The plaintiffs excepted, and, after judgment, sued out a writ of error.
R. N. Morrison,
for the plaintiffs in error, insisted, 1. That the contract in respect to all the lamps was entire, and constituted but one purchase; and this, though they were deliverable in different parcels and at different times. (Baldey v. Par ker, 2 Barn, & Cress. 37.) Hence, a delivery of the two
p. 143
dozen, in pursuance of the contract, was equivalent to a delivery of the whole. (Damon v. Osborn, 1 Pick. R. 476.) 2. But even if the agreement as to the lamps in question be regarded as distinct from the purchase of the two dozen, then it is submitted that the delivery of the former to the carman, no carrier having been designated by the defendant, is a good delivery to the defendant. (Dutton v. Solomonson, 3 Bos. & Pull. 582.) 3. The tender of the lamps to the defendant was equivalent to a delivery; and if the plaintiffs chose to relinquish their lien for the purchase money, their remedy could not be changed by the defendant’s refusal to accept. (Smith v. Chance, 2 Barn. & Ald. 755 ; Downer v. Thompson, 2 Hill, 137 .)
C. W. Van Voorhis,
for the defendant in error. 1. The contract on which the plaintiffs sought to recover in the court below was entirely independent of the agreement for the purchase of the two dozen lamps. 2. The agreement was for work and labor, and materials to be found—not for the sale of goods ; and hence the declaration is inapplicable to the case. (Crookshank v. Burrell, 18 John. R. 58 ; Bennet v. Hall, 10 id. 364 ; Cooper v. Elston, 7 T. R. 14 ; Rondeau v. Wyatt, 2 H. Blac. 63.) The plaintiffs should have sued for work and" labor, &c., or declared specially setting forth the contract. (Cowen's Treat. 99, 2d ed. ; Outwater v. Dodge,7 Cowen, 85 ; Sewell v. Fitch, 8 id. 215 ; Chaplin v. Rogers, 1 East, 191 ; 1 Chit. Pl. 381 ; Atkinson v. Bell, 8 Barn. Cress. 277 ; Lathrop v. Bryant, 1 Bing. N. C. 430 ; Thompson v. Maceroni, 3 Barn. & Cress. 1 ; Bement v. Smith, 15 Wend. 493 .)
Here was no actual delivery and acceptance by the defendant below. The contract was executory, and he refused to receive. It was scarcely a case of goods bargained and sold,[1] The count should, I apprehend,
(a) (a) Something remained to he done to the lamps, at the time they were ordered, before they were ready for delivery; and hence the sale was incomplete. (See Downer v. Thompson, 2 Hill, 137 .)
p. 144
have been special, for refusing to accept. All the cases on this point were considered in Atkinson v. Bell, (2 Man. & Ryl. 292, 8 Barn. & Cress. 277, S. C.,) and the subject entirely exhausted: indeed the case itself is directly against the plaintiff in error. The contract for the two dozen lamps was distinct, and the delivery of these bore no relation to the one hundred in question. (Thompson v. Maceroni, 3 Barn, Cress. 1.)
The case of Downer v. Thompson, ( 2 Hill, 137 ,) or rather the dictum cited from that case, went on the assumption that there had been a delivery to and acceptance by the carrier with the assent of the vendee.[2] That is a constructive delivery to the vendee himself, and satisfies a count for goods sold and delivered, the same as a personal delivery to and acceptance by him. If he order goods to be sent by a carrier, though he do not name him, and they are sent accordingly, that is a delivery. (Dutton v. Solomonson,3 Bos. & Pull. 582.) Such direction may certainly be implied from the course of trade ; but I do not see here any direction so to send, either express or implied. The practice between Newark and New-York is not shown. There was no dispute in the cases cited that the goods were to be sent by a carrier, nor that they were so sent pursuant to order.
Judgment affirmed.
(b) (b) i) And see Grosvenor & Starr v. Phelps, ( 2 Hill, 147 .)
Cases cited
- Bement v. Smith 15 Wend. 493 p. 143