Upon the trial the principal questions litigated were whether the cloth was sold by sample with a warranty and whether it corresponded with the sample. These questions were submitted to the jury, and were really the only questions submitted to them, and as to them the decision of the jury cannot be disturbed.
I am of opinion, however, that the contract of sale was
In Phillips agt. Bristotle, (2 B. & Cr., 511), it is said per curiam: “ In order to satisfy the statute there must be a delivery of the goods by the' vendor with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter with an intention of taking the possession as owner.” In Beid agt. Hutchinson, (3 Bos. & Pul., 233), it was held that the acceptance must be an ultimate acceptance, and such as completely affirms the contract. In Smith agt. Surmon, (9 B. & Cr., 861), Parke, B., says: “The latter cases have established that unless there has been such a dealing on the part of the purchaser as to deprive him of any right to ob
Within the principles laid down in the above authorities there is not in this case any ultimate or final acceptance of the cloth by the vendees. Upon this point there is no conflict in the evidence. There was not sufficient opportunity to examine the cloth while it was in the store of the plaintiffs, and hence it was arranged that it should be taken to 'the store of the defendants and they were to examine it, and if they were satisfied as to the quantity and quality of the cloth, then they were to give their note for the purchase price. They did take the cloth and examine it, and after the examination refused to accept it. There is .no evidence whatever that they ever accepted it or intended to accept it-Bliss, one of the- plaintiffs, testified that Button, one of the defendants, at the time of the negotiation for the purchase of the cloth, stated that he could not examine the cloth where it was, aud that it was the understanding that he should take the cloth and examine it all before the week was out, and then give defendants’ notes for the same. Stone, another of the plaintiffs, testified that defendants were not ready to receive the goods then, but that the understanding was' that they were to take them, and before Wednesday of the next week, examine them for the purpose of seeing whether they had the quantity and quality they bargained for, and were then to give their notes for them. Fay, also one of the plaintiffs, testified that he wrote at the bottom of the bill of sale, which was sent to the defendants, the words, u To be examined by Wednesday or Thursday of next week.” We thus have the testimony of all the plaintiffs concurring that tire defendants received the goods only for examination, and the testimony on the part of the defendants on the same points is still stronger. They did not take possession of the goods as owners, and it was not the intention of the parties
To the refusal to charge, as thus requested, there was an exception. This shows quite clearly that the judge tried the case upon the theory of an executory sale, valid and binding (unless there was a breach of warranty) without acceptance. In this refusal to charge there was manifest error, because without acceptance there was no valid contract of sale, and the defendants had the right to- reject and return the goods without any liability whatever to the plaintiffs.
Another view of this case will also show that the statute of frauds was not complied with. There was at least no- such delivery of these goods as deprived the plaintiffs of their lien for the purchase price. When the goods were returned to the plaintiffs they claimed a lien on them for the purchase price, and refused to receive them except as lien-holders, and they sold them to satisfy this lien. And they claim, in this action, to recover the balance of the purchase price not satisfied by a sale of the property. It is unnecessary to inquire whether, upon the facts as they appeared upon the trial, the plaintiffs had this lien qr not. They claimed it, acted upon it, and alleged it in their complaint. They cannot now be
The judgment should, therefore, be reversed, and a new trial granted, costs to abide event.
“ Lott, Ch. G., reads for reversal. All concur. Judgment reversed and a new trial granted, with costs to abide event.”
Lott, Ch. Com.: 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 sample 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.
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, or 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 u accepted ” by them with the intention of taking possession as owner. The statute of frauds requires that
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 agt. Houston, 1 Comst., 261, &c.; Brandt agt. Focht, 3 Keyes, 409; Caulkins agt. Hellman, 47 N.Y., 449.
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.