Morris Spirt & Co. v. Prior

Roraback, J. The ruling upon the demurrer becomes unimportant, as the same question is presented to us in the plaintiff’s request to charge, in which the court was asked to instruct the jury that “the allegation in paragraph three of the answer, that the buyer accepted and actually received five barrels of sugar as part of the thirty-five barrels bought of the seller on such contract, even if true, is not alone sufficient, in an action by the buyer against the seller for nondelivery of goods of a value of one hundred dollars or more, or as a defense in this action, or upon the counterclaim in this action, to take such oral contract outside of the operation of the statute of frauds.” This request was refused, and we are now called upon to determine whether the court erred in so doing. Our statute of frauds (§ 6131) provides in part, that “a contract to sell or a sale of any goods or choses in action of the value of one hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or. choses in action so contracted to be sold or sold, and actually receive the same.” “The acceptance referred to is that which the statute requires to give validity to the contract. It must be with intention to perform the whole contract and assert the buyer’s ownership under it, but it is sufficient if it be *642 of part of the goods only. Such an acceptance implies the existence of a completed contract, sufficient to pass title, which is not to be confounded with that actual transfer of possession necessary to defeat the vendor’s lien or his right of stoppage in transitu, or to show an actual receipt under "the statute.” Townsend v. Hargraves, 118 Mass. 325, 333; 20 Cyc. 245, 246. It is to be noted that the plaintiff’s request to charge assumes that the plaintiff and defendant have made and entered into a contract for the sale and delivery of thirty-five barrels of sugar, and that the defendant has actually accepted and received five barrels of sugar as a part of the thirty-five barrels bought of the plaintiff upon their contract. To have complied with the plaintiff’s request would have ignored one of the plain provisions of the statute relating to the delivery, acceptance, and receipt of personal property. The court below having found the issues for the defendant upon her answer and counterclaim, we cannot grant a new trial unless it appears that some question of law has been improperly decided. The verdict of the jury has not been questioned as being against the evidence. This is not before us. We may assume that the jury were properly instructed, as no question is raised as to the charge as given. The only assignment of error that requires attention is the one relating to the refusal of the trial court to charge as requested, hereinbefore referred to. This, <íike the demurrer,^ admits that there was a contract for the sale and delivery of thirty-five barrels of sugar, and that a part of this was actually accepted and received by the defendant for the whole quantity that was purchased. In general, “a part may be delivered for the whole, and in general a delivery of part is a delivery of the whole, if it be an integral part of one whole, but not if many things are sold and bought as *643 distinct articles, and some of them are delivered and some are not.” 3 Parsons on Contracts (6th Ed.) p. 43. From this it appears that the agreement made met the requirements of the statute of frauds, which was sufficient to sustain the defendant’s counterclaim for damages, in the absence of equitable considerations, which do not appear. Kilday v. Schancupp, 91 Conn. 29, 32, 34, 98 Atl. 335. There is no error. In this opinion the other judges concurred.