Greenleaf v. Hamilton

Foglee, J.

This is an action of assumpsit to recover the price of a certain book entitled, “ Men of Progress.”

The case comes to us upon exceptions by the plaintiff to a ruling of the judge of the Superior Court for the county of Cumberland, in which court the case was entered and tried, directing the jury to return a verdict for the defendant.

April 8, 1896, the defendant, by his written order of ;that date directed to the New England Magazine, a publishing concern of Boston, Mass., requested said publishers to send him one copy of the book above named, and therein agreed to pay therefor the sum of thirty-five dollars.

August 14, 1897, the publishers’ delivering agent called at the defendant’s office and was informed by some persons there present that the defendant was out of the city at that time."’ Thereupon the agent left a copy of the book at the defendant’s office and informed those present that the defendant had subscribed for the work.

The defendant did not testify at the trial nor did he offer any testimony in defense.

The publishers assigned the claim to the plaintiff who brings this suit, as such assignee, to' recover the contract price of thirty-five dollars.

The presiding justice ordered the jury to return a verdict for the *121defendant “ because tbe plaintiff had failed to show a delivery of the property to the defendant,” to which order the plaintiff excepts.

To maintain an action for goods sold and delivered, proof of an actual delivery to and acceptance by the purchaser of the goods sued for is essential. Atwood v. Lucas, 58 Maine, 508 ; Edmunds v. Wiggin, 24 Maine, 505; Moody v. Brown, 34 Maine, 107; Greenleaf v. Gallagher, 93 Maine, 549.

Delivery and acceptance are questions of fact and are to be proved as other facts may be proved. They may be established by direct testimony or may be inferred from circumstances proved in the case.

As stated in Moody v. Brown, supra, “ there must be proof of an acceptance or of acts or words respecting it from which an acceptance may be inferred.”

The acts of the purchaser, or his failure to act, may be pi’operly considered upon the question of delivery and acceptance. “ Silence and delay for an unreasonable time are conclusive evidence of acceptance. The burden of action is upon the buyer, and he must seasonably notify the seller of his refusal to accept the goods.” White v. Harvey, 85 Maine, 214.

The questions of delivery and acceptance, being of fact, must be determined by the jury.

It is true that when the testimony is clear and uncontradicted, and the inferences to be drawn therefrom are not doubtful or uncertain, the court may decide the question as one of law; but where there may be uncertainty or difficulty in, determining the true intent of the parties respecting the delivery and acceptance from the facts proved, the question is to be decided by the jury. Houdlette v. Tallman, 14 Maine, 400.

In the case at bar neither time or place of delivery of the book subscribed for was stipulated. The publisher had the right to deliver it at a reasonable place and within a reasonable time. Whether, under the circumstances of the case, the defendant’s office was a reasonable place for such delivery, and whether from the defendant’s subsequent conduct and silence an acceptance could *122be properly inferred, were question's which should have been submitted to the jury, and should not have been decided by tbe presiding justice as a matter of law.

Exceptions sustained.