The question in this case, the decision of which is conclusive between the parties, is whether a delivery of goods to a general carrier, in pursuance of the order of a proposed purchaser, to be transported to him, is such a consummation of the contract of sale as dispenses with a writing and takes the transaction out of the operation of the statute of frauds.
The defendants, in New York, gave verbal orders for 175 to 200 tons coal, and directed that it be delivered "on board at Richmond (near Philadelphia), in the customary manner," no particular boat or barge being designated.
The plaintiff shipped 188 tons, lading it upon the coal barge "I.K. Smith," received a bill of lading therefor, whereby the coal was made deliverable to the defendants, they paying freight, and forwarded the bill of lading to the defendants. Within a few hours after the coal was placed on board, and before leaving on her voyage, the barge sprung a leak and was sunk with the coal on board.
The defendants received the bill of lading on Monday, June 28, 1868; on receiving information of the sinking of the barge, the defendants sent an agent to Richmond to learn the facts, and on Thursday returned the bill of lading, denying their liability to pay for the coal.
In accordance with the general rule, that where goods are purchased, to be shipped or sent to the buyer, a delivery to the carrier, whether he be a general carrier or one specially designated by the buyer, constitutes performance by the seller, is a sufficient delivery, vests the title to the goods in the buyer (subject to the right of stoppage in transitu), and places the goods at his risk, the Supreme Court held the plaintiffs entitled to recover. *Page 530
This general rule is unquestionable; and the numerous cases cited by the counsel for the respondent, on the argument of this appeal, are full and conclusive. It is quite sufficient to mention Ludlow v. Brown et al. (1 John's R., 15); ThePeople v. Hayne (14 Wend., 562); Hayne et al. v. Porter (3 Hill, 141); Waldron v. Romaine (22 N.Y., 368); Dawes v.Peck (8 T.R., 330); Dutton v. Solomonson (3 Bos. Pul., 584); and cases incidentally considered in Harris v. Hart (6 Duer, 606); and Holbrook et al. v. Vose et al. (6 Bosw., 104).
But the decision below overlooks the fact, that the statute of frauds requires the acceptance and receipt of the goods as well as delivery; and without these, there is no binding contract of sale.
In the cases referred to, and in the text books, where the question is, what constitutes performance by the vendor, or delivery, so as to vest title and place the goods at the risk of the buyer, an existing, binding agreement or purchase is assumed. Here the inquiry is, whether there is a binding contract. A parol agreement of purchase, the statute declares void, "unless the buyer shall accept and receive part of such goods," c. (2 R.S., p. 135, § 3, subd. 2.)
The rule on this subject, stated by Story, in his treatise on Sales as established by the authorities, is this: "The meaning to be attached to the terms `accept and receive,' is that the purchaser must finally appropriate to himself the whole, or a part of the goods. To create such an appropriation as that contemplated in the statute, there must be not only such an actual delivery by the seller as to destroy all further claim of lien or of stoppage in transitu on his part, but also such an actual acceptance by the buyer, as to disable him from objecting to the quantity or quality of the goods. * * The delivery must be a complete and final delivery, and the acceptance an ultimate acceptance; so as to reduce the goods to the actual possession of the vendee. It follows, therefore, that no receipt of goods by a carrier or middleman, on their way to the buyer, is a sufficient acceptance, unless such carrier or middleman be the general agent of the vendee, having *Page 531 authority finally to accept them." This broad and explicit exposition of the acceptance necessary to give validity to the contract, and stand in place of a writing, is founded upon numerous English cases on the construction of the statute in England, from which ours is copied. (Baldey v. Parker 2 Barn. Cres., 44; Phillips v. Bistoli, id., 513; Smith v.Surman, 9 Barn. Cres., 561; Carter v. Touissant, 5 Barn. Ald., 858; Kent v. Huskisson, 3 B. P., 233; Hanson v.Armitage, 5 Barn. Ald., 557; Astley v. Emory, 4 Maule Selw., 264; Howe v. Palmer, 3 B. A., 321; Johnson v.Dodgson, 2 Mees. Welsb, 656.)
Obviously this rule is decisive of the question in this case. Indeed, it is wholly unnecessary to go to so great length for the purposes of this case.
Addison, in his treatise on contracts, though not in terms, yet in substance, gives the like exposition of the force and effect of these terms of the statute, superadded to the force of mere delivery, where there is already a valid contract of sale. (Add. on Cont., pp. 243, 244, 245.)
It has sometimes been argued that delivery to a carrier designated by the buyer will suffice to satisfy the statute, although delivery to a general carrier will not; but this distinction cannot be sustained where the carrier has no other authority than to transport the goods. In Acabel v. Levy (10 Bing, 376), the delivery was on board a ship chartered by the buyer, and yet it was not held to constitute an acceptance within the statute; and see, also, Meredith v. Meigh et al. (2 Ellis Bl., 364).
In Shindler v. Houston (1 Comst., p. 273), WRIGHT, J., reviews the cases on the construction of these terms in the statute, and says: "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." (Chitty on Contracts, 390, and cases cited; Hilliard on Sales, 135, and cases cited.) *Page 532
The proposition thus stated is in unquestionable conformity to the English cases above referred to, but the Court of King's Bench, in England, in Morton v. Tibbett, in 1850 (15 Ad. El., N.S., 428), while they recognize the necessity of an acceptance to satisfy the statute, deny that an acceptance which will satisfy the statute necessarily precludes the rejection of the goods after examination, and denying the fact of performance by the vendor.
Lord CAMPBELL reviews the previous cases, and, while he admits the repeated assertion of the rule as above stated, he questions its soundness, and finds, in other cases, some warrant for his qualification of the rule.
But the rule that there must be something more than such a delivery as would change the title, and place the goods at the risk of the buyer, if the contract was in writing, is not questioned. It is sufficient, for the purposes of this case, to say that a delivery to a general carrier not designated by the buyer, for the mere purpose of transportation to him, does not constitute an acceptance of the goods within the statute of frauds.
In Coombs v. Bristol and Exeter Railway Co. (3 Hurl. Norm., 510), in 1858, the subject was considered, at length, in the English Court of Exchequer, and the rule reasserted. See, also, on the meaning of the term "receive," Fernier v. Home (16 Mees. Welsb, 119); Hart v. Bush (4 Jur., N.S., Q.B., 271); Frostburg Mining Co. v. New Eng. Glass Co. (9 Cush., 115).
The judgment is clearly erroneous. The defendants never accepted nor received the goods, within the meaning of the statute, and the defendants' motion for a nonsuit should have been granted.
The judgment must be reversed.
MASON and JAMES, JJ., concurred in WOODRUFF'S opinion.
GROVER, J., was for reversal. He was not, however, prepared to concur in the doctrine of WOODRUFF'S opinion as to the case of a carrier designated by the vendee.) *Page 533
HUNT, Ch. J., concurred with GROVER, J. He, also, was inclined to think that the fact of the property being put by the plaintiffs on board an unseaworthy vessel was a material circumstance in favor of the defendants.
LOTT, J., dubitante, did not vote.
Judgment reversed and new trial ordered.