Dedrich v. Leonard — 3 N.Y. St. Rep. 780

Majority

p. 780

William H. Dedrich, et al., Resp’ts, v. Richard H. Leonard, App’lt.

(Supreme Court, General Term, Third Department,

Filed November, 1886.)

Headnote

1. Contract—Statute of frauds.

Held, of a certain verbal agreement that it was not to manufacture, but to sell, and was within the statute of frauds.

2. Same—Acceptance and receipt.

Held, that acceptance and receipt under the statute of frauds are acts, and that to satisfy the requirements of the statute the party must actually accept as satisfactory and. receive into his possession some part of the goods.

This appeal is from a judgment entered on the report of a referee upon trial. The action was commenced in May, 1885, for the price of eight cords of oak and hickory sticks, called “butts,” alleged to have been sold and delivered to the defendant by the plaintiffs.

In September, 1883, defendant had a conversation with plaintiff Dedrich, in which he solicited him to procure for him a quantity of hickory sticks, describing them, and saying that eight cords should be furnished at a point on Lake Ohamplain, convenient for loading on boats, and he would pay fourteen dollars, a cord for such sticks when so delivered. Plaintiff and one William H. Burgess procured and had them on the lake shore and notified defendant, who said he would come over and measure them, and in March he did go there with plaintiff and both parties measured thetia. The-evidence is contradictory as to what was said at that interview, plaintiff claiming that defendant pronounced the wood “all right,” and ordering a boat to carry the wood which “I bought from Dedrich and Burgess,” while defendant claims that at that time he told plaintiff that the timber was unsuitable, the place inconvenient, and that he would not accept the timber.

The referee found that a valid and binding contract was made. The main defense was the statute of frauds.

1 T. A. Lille, forresp’t; Robert Dornburgh, for appl’t.

There was a verbal agreement not to manufacture but to sell. Cooke v. Millard, 65 N. Y., 352 ; Smith v. N. Y. C. R. R., 4 Abb. Ct. App. Dec., 262 . Therefore it was void the statute of frauds.

When plaintiffs deposited the sticks on the shore of the

p. 781

lake, according to their verbal agreement, this did not make the void agreement binding. Nothing would bind the defendant but his acceptance and receipt of his payment.

When one of the plaintiffs and the defendant met after-wards at the place where the sticks were lying, no act was done except to measure and ascertain the amount of the sticks. The defendant paid nothing and took no possession of the sticks or of any part of them.

Acceptance and receipt under the statute of frauds are acts. If they could be performed by words only, then they might be performed by words at the time of the making of the verbal agreement. The purchaser might say, “I accept and receive the goods,” and thus the object of the statute might be thwarted.

The words-are quite plain, “accept and receive.” These words do not mean simply that the buyer is to express in words his satisfaction with the vendor’s performance of the verbal agreement. They mean that he is to do something by which he shall actually accept as satisfactory and receive into his possession some part of the goods. Shindler v. Houston, 1 N. Y., 261 ; Hallenbeck v. Cochran, 20 Hun, 416 , and other cases.

The plaintiffs cite Bacon v. Gilman, ( 57 N. Y, 656 ), and Stanton v. Small ( 3 Sandf., 230 ). Butthese were not cases of verbal agreements.

We are satisfied that there was no proof of any act of the defendant which showed an acceptance and reception of the sticks. Hence he was not bound by the verbal agreement. The learned referee, in his opinion, seems to consider that, adopting the plaintiff’s testimony as correct, the defendant expressed himself as satisfied with the sticks and promised to pay for them, deducting a certain allowance for the culls.

But everything remained in words. Nothing was done. The defendant received no part of the goods and took possession of no part. There are other questions of some consequence. But it is unnecessary to consider them.

Judgment reversed, new trial granted, referee discharged, costs to abide event.

""'ockes and Landón, JJ., concur.