Majority
Headnote
Frauds, Statute of—Sale of Goods—Delivery—Wiiat Constitutes.Defendants urge two grounds of exemption from liability : First, that Sweet was not acting as their agent in the purchase of plaintiff’s straw; secondly, that the contract is void under the statute of frauds. It is unnecessary to discuss .the question first raised, because, in our judgment, plaintiff has not proven á sufficient delivery of the straw to meet the- requirements of the statute that a sale of personal property of over $50 in value must be evidenced by a writing, unless accompanied by a delivery of some part of the property. In Shindler v. Houston, 1 N. Y. 261 , 49 Am. Dec. 316 , the headnote in part reads:
“It seems that to constitute a delivery and acceptance of goods, such as the statute requires, something more than mere words is necessary. Super-added to the language of the contract there must be some act of the parties, amounting to a transfer of the possession, and an acceptance thereof by the buyer. The case of cumbrous articles is not an exception to this rule.”
“The best-considered cases hold that there must be a vesting of the possession of the goods in the vendee, as absolute owner, discharged of all lien for the price on the part of the vendor, and an ultimate acceptance and receiving of the property by the vendee, so unequivocal that he shall have precluded himself from taking any objection to the quantum or quality of the goods sold.”
In the same case Judge Gardiner refers to the case of Phillips v. Bistolli, 2 B. & C. 511, in which it is said:
“To satisfy the statute there must be a delivery by the vendor, with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter with the intent of taking possession as owner.”
Judge Gardiner then proceeds to say:
“This, I apprehend, is the correct rule, and it is obvious that it can only be satisfied by something done subsequent to the sale unequivocally indicating the mutual intentions of the parties.”
See, also, Cooke v. Millard, 5 Lans. 243 . In Rodgers v. Phillips, 40 N. Y. 519 , it is held that delivery to a carrier, specially designated by the purchaser, where such carrier has no other authority than to transfer the goods, does not satisfy the statute.
The station agent swears that the car into which the straw was loaded was ordered for plaintiff to load straw in for defendants. The plaintiff swears that the car was ordered by Sweet for defendants. This conflict, is, in our judgment, of little materiality. The fact remains undisputed that the possession of the straw was never unequivocally surrendered to Sweet as the agent of the defendants. He was expressly forbidden to remove the straw until it had been paid for. This is sworn to by the plaintiff himself. Within all the authorities such a retention of control is inconsistent with such a complete delivery as is necessary to take the contract out of the condemnation of the statute. The law is not concerned with the reason for a refusal on the part of the defendants to pay for the straw, or of the plaintiff to make complete delivery. With an absolute surrender of possession required to make-valid the contract, plaintiff has failed to show an existing obligation on the part of the defendant.
The judgment and order should therefore be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.
Cases cited
- Shindler v. Houston 1 N. Y. 261 p. 998
- Cooke v. Millard 5 Lans. 243 p. 999
- Rodgers v. Phillips 40 N. Y. 519 p. 999