On the trial, after proving that the statute of frauds in force in Maryland was substantially like our own, the defendants moved that the plaintiff be nonsuited, on the ground that the contract of sale was void by that statute, and the court denied the motion; and this ruling raises the only question for our consideration in this case.
There was no note or memorandum of the contract, and no part of the purchase-money was paid by the buyers; and, hence, unless the buyers accepted and received the hoops, within the meaning of the statute, the contract was void. A purchaser may accept without receiving, and he may receive without accepting; and, in order to comply with the statute of frauds, he must both accept and receive. Here the defendants accepted the hoops. One of them saw them in plaintiffs' yard; and the contract had reference to this particular lot of hoops which the plaintiffs finally delivered. There is nothing in the statute which requires that the accepting and receiving shall be at the same time. Either may precede the other; and, after both have concurred, the statute has been complied with and the contract becomes operative and valid. (McKnight v. Dunlop, 5 N.Y., 537.) The defendants agreed to take these identical hoops, and, after receiving them and thus fully complying with the statute, they could not reject them upon any objection to their quality. The only question, then, is, did they receive them, within the meaning of the statute? And this involves the inquiry, whether, in a case where the purchaser has accepted the goods, a delivery to a carrier designated by himself will answer the requirement of the statute as to receiving the goods by the purchaser. I am of opinion that it will. It has finally been settled, both in this country and in England, that a delivery to a general carrier, not designated by the purchaser, is not a sufficient compliance with the statute (Rodgers v.Phillips, 40 N.Y., 519); and for the best of reasons. In such a case the purchaser has done nothing beyond making the void contract. He has neither accepted or received the goods himself, nor authorized or designated any agent to do it for him. But, in *Page 665 this case, the purchasers designated the agents of the "Curlew" to receive and transport the hoops to them. They were the agents of the defendants for the purpose of receiving the hoops from the plaintiffs.
It is not necessary to determine in this case that a mere carrier, designated by the buyer, can both accept and receive for him, so as to make a compliance with the statute; but I can find no reason founded upon principle, or authority, to doubt that, after the buyer has accepted the article purchased, a carrier, designated by him to take and transport it, can bind him as his agent by receiving it. While there is not upon this question entire harmony in the views of judges, and while the authorities cannot all be reconciled, the general drift of them is toward the conclusion I have reached. (2 Parsons on Con., 326; Outwater v.Dodge, 6 Wend., 397; The People v. Haynes, 14 Wend., 546;Glen v. Whitaker, 51 Barb., 451; Spencer v. Hale, 30 Vermont, 314; Maxwell v. Brown, 39 Maine, 98; Hanson v.Armitage, 5 Barn. Ald., 557; Acebal v. Levi, 25 Eng. C.L., 170; Coats v. Chaplin, 43 Eng. C.L., 831; Morton v.Tibbett, 69 Eng. C.L., 427.)
It is said by some writers, that to create such an appropriation of the goods by the buyer as will answer the meaning attached to the words "accept and receive" in the statute, there must be such an actual delivery by the seller as will destroy all lien for the purchase-price, or right of stoppage in transitu. This, to the full extent, is not true. The seller has a lien for the purchase-price of the goods while they remain in his possession. And this lien he loses when he voluntarily parts with the possession, except when he delivers them to a carrier. In the latter case, his lien is extended and lasts, although the title has passed to the buyer, until the carrier has delivered the goods to the actual possession of the buyer. This lien is an arbitrary one, created by law. As observed by Lord KENYON, in Hodgson v. Lay (7 T.R., 436), it is "a kind of equitable lien adopted by the law for the purpose of substantial justice." When the seller retakes *Page 666 the property in the exercise of this right of stoppage, he is not reinvested with the title, but simply placed in the actual possession of the goods, holding them as security for the purchase price.
The stoppage must be while the goods are in transitu, and that is usually when they are not in the actual possession of either party; and yet they may be in the actual possession of the buyer under such circumstances as not to take away the right of stoppage. This right exist, although the goods are shipped upon the buyer's own vessel, consigned to him at his place of residence. (Stubbs v. Lund, 7 Mass., 453; Ilsley v.Stubbs, 9 Mass., 65; Story on Sales, § 336.) The fact that the right of stoppage exists is no evidence that both the title and possession have not passed to the buyers. The contract of sale may be in writing, part of the purchase-money may have been paid, and there may have been a part delivery, and yet, if the seller consigns the goods by a carrier to the buyer, to be delivered to him at the place of their destination, the right of stoppage exists. And this may be so, even if the buyer is also master of the vessel, and he in person takes the goods and loads them upon his own vessel, provided, as in this case, the seller consigns the goods to the buyer to be carried by him to their place of destination. (Pars. on Mar. Law 335, etc.) Hence I hold that a carrier designated by the buyer may receive the goods purchased, so as to make a compliance with the statute of frauds; and this leads to an affirmance of the judgment.
All concur.
Judgment affirmed with costs.