The contract for the sale of goods, the price which in gross was more than thirty-three dollars, was within the statute of frauds. Gilman v. Hill, 36 N.H. 311, 318; Jenness v. Wendell, 51 N.H. 63, 70. As there was no note or memorandum in writing signed by the defendant, and nothing paid to bind the bargain, the contract cannot be enforced against the buyer unless it appears that he has accepted and actually received part of the property sold. P. S., c. 215, s. 3. Whether there has been such acceptance and receipt or not, is a question of fact. Small v. Stevens, 65 N.H. 209; Pinkham v. Mattox, 53 N.H. 600, 605. The question presented by the exception, therefore, is whether there was any evidence upon which these facts can be found. There was an actual receipt of a part of the goods, and the motion for a nonsuit is put solely upon the ground that there was no evidence of acceptance. Delivery to a common carrier is not evidence of acceptance, in the absence of any evidence that the carrier was the defendant's agent for the purpose of accepting the goods. Shepherd v. Pressey, 32 N.H. 49, 55; Johnson v. Cuttle, 105 Mass. 447; Bro. St. Fr., s. 327 b; Benj. Sales, ss. 160, 181; note. For the same reason, the removal of the goods from the railroad by the truckman did not furnish evidence of acceptance by the defendant. Atherton v. Newhall, 123 Mass. 141. If, therefore, the finding of acceptance implied in the general verdict for the plaintiff was based upon the fact of the reception of the goods by the railroad or the truckman, it is erroneous and should be reversed. There was, however, other evidence in the case. Both shipments of the goods were received by the defendant in his store before December 4, at which time he wrote the plaintiffs complaining of the quality and stating that he will look them over again, and "if they are not all right will return them." The goods were retained by the defendant a little over two weeks longer, and were then returned by him upon the ground, as he wrote, that he could "do better." From this evidence it might be inferred that the plaintiff examined the goods with the intention of accepting them if they corresponded with the sample, and that they were accepted by him, as they in fact did so correspond, but were subsequently returned because, in the language of his letter, he found he could "do better." Whether this inference *Page 326 should be drawn is a question of fact, as is also the question what inference should be made from the length of time the goods were kept before they were returned. Small v. Stevens, supra; Borrowscale v. Bosworth,99 Mass. 378, 381; Morton v. Tibbett, 15 Q. B. 428; Bushell v. Wheeler, 15 Q. B. 442.
Exception overruled.
All concurred.