It must be assumed that the jury, under the instructions given to them by the court, have, by their verdict in favor of the plaintiffs, found either that there was neither an express warranty nor a sale of the goods by sample, or that they conformed to the warranty, if there was one, and corresponded with the samples exhibited if the sale was by sample.
The defendants are therefore precluded from any relief on those grounds.
They were, however, entitled to have the jury instructed as asked in the ninth request or proposition submitted to the court. *Page 214
Although the goods were delivered by the plaintiffs to the defendants, it was a question strongly litigated on the trial, whether they were received absolutely as their property of only for the purpose of ascertaining whether they conformed to the sample shown them. It appears to be conceded by the plaintiffs that the defendants were allowed a week to make an examination of them for the purpose of seeing whether any portion thereof was so defective as to entitle them, according to the custom of the trade, to make a return thereof, and have a deduction made, on account of the same, in the amount of the note to be given therefor. Under this conflict of evidence, the defendants were entitled to have the question determined by the jury, whether the goods had in fact been "accepted" by them with the intention of taking possession as owners.
The statute of frauds requires that "the buyer shall accept and receive" a part of the goods covered by the contract for the sale thereof.
The mere receipt is not a compliance with that requirement. There must be some act or conduct on the part of the buyer indicating and manifesting his intention in receiving them to accept them absolutely and unconditionally in execution and full performance of the contract of sale. (See Shindler v.Houston, 1 Comst., 261, etc.; Brand v. Focht, 3 Keyes, 409;Caulkins v. Hellman, 47 N.Y. [2 Sickels], 449, etc.)
The refusal to charge in conformity to the above request was therefore an error which calls for and requires a reversal of the judgment and a new trial, with costs to abide the event.