Good v. Curtiss

By the court, Daniels, J. If the agreement made between defendants and the plaintiff for the sale and delivery of the iron and copper was binding upon the parties, it was sufficient to constitute a sale of the property, as distinguished from a mere agreement to sell; for nothing further was to be done on the part of the vendee, as between them and the purchaser, and where that is shown to be .the case, the title to the property passes to the purchaser, even though it may still be necessary for the vendee to weigh it in order to ascertain the aggregate price he may be liable to pay for it under the agreement. (Smith’s Mercantile Law, 571-3, and Notes ; Downer agt. Thompson, 6 Hill, 208; Joyce agt. Adams, 4 Seld. 291, 296; Terry agt. Wheeler, 25 N. Y. R. 524-5.) The difficulty in the way of carrying the agreement into effect, therefore, arises solely out of the circumstances that there was no note or memorandum of it in writing. The statute commonly called the statute of frauds, provides that every contract for the sale of any goods, chattels or tilings in action, for the price of fifty dollars or more, shall be void unless, 1st. A note or memorandum of such contract be made in .writing, and be subscribed by the parties to be charged thereby; or, 2d. Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or, 3d. Unless the buyer shall at the time pay some part of the purchase money (3 R. S. 5th ed. 221, § 83). As no note or memorandum of the contract of sale was made, nOr no part of the purchase money paid' [11] in this case, the validtiy of the agreement depends entirely upon whether the buyer accepted or received any part of the goods or property which was the subject of the agreement. In order to constitute an acceptance or receiving of a part of the goods within the meaning of the statute, it is necessary that there should be some act, something done indicating it beyond words merely. Accordingly, it has been held that where the vendor and vendee, with the property before them, agree upon the terms of sale and the price to be paid, and that the subject of the contract shall become the property of the vendee, the title does not pass if the price for which the sale is made exceeds the sum of fifty dollars. (Shindler agt. Houston, 1 Comst. R. 261; Brabin agt. Hyde, 32 N. Y. R. 519.) It is not necessary that any part of the goods should be accepted or received by the buyer at the time of the contract, but an acoeptanee or receiving of the same at any time after-wards, if it be done under the contract, and while that remains unrevoked, will bo sufficient to comply with the requirements of the statute. (Sprague agt. Blake, 20 Wend. 61; McKnight agt. Dunlop, 1 Seld. 537.) If the contract between these par bies continued open at the time when the plaintiff sold the iron upon his premises which belonged to the defendants, to Farrar, Treffts & Knight, that sale of itself will be sufficient to charge him with having received and accepted a part of the property, which by the contract he had undertaken through his agents to purchase for a more unequivocal act of acceptance than that of selling and transferring the property to another cannot very well be imagined. The only question necessary for consideration in this case, therefore is, whether the contract of salo between the defendants and the plaintiff was at that timo subsisting and unrevoked. If it was, then the acceptance- of that part of the iron which was on the plaintiff’s premises rendered it valid and binding not only as to that, but as to all the rest which was included in it. If, however, an end had been put to the [12] contract, then the sale made of this part of the iron by the plaintiff, would not renew or revive it, although he informed the purchasers that he had bought it of the defendants and credited it to them on their bill. The sale, then, would be a conversion of the property, for which the plaintiff would be liable to defendants to the extent of its value, and not an acceptance of it under the contract of sale; for such an acceptance would be manifestly impossible if the contract had previously been terminated by the act of either or both of the parties. The referee found and decided that there was no delivery or acceptance of any part of the property, and that the sale made by the plaintiff of that which was upon his premises, was a wrongful conversion of so much of it as he then sold. To justify that conclusion, the evidence must have satisfied him that the contract between the defendants and the plaintiff was not at that time open and subsisting, for upon no other theory could such a conclusion be maintained. This action seems to have been commenced early in the month of November, in the year 1864, about three weeks before the sale of the iron about his premises was made by the plaintiff to Farrar, Treffts & Knight. The commencement of the action, upon his own account, which would have been overpaid if the contract for the sale of the old iron had not then been repudiated, was an unmistakable indication of the plaintiff’s intention to disaffirm that contract. But the evidence of disaffirmance is not wholly confined to that circumstance ; for Adam Good, Jr., who was clerk for his father, the plaintiff, in his business, testifies that he told Curtiss, one of the defendantSj that he did not want the iron. Mr. Allen, the superintendent, testifies that this was about the latter part of October, 1864. And the other defendant testifies that about a week before the suit was commenced, ' the plaintiff and Allen, his superintendent, called upon him to settle the bill in suit; that the contract for the sale of the iron was then communicated to the plaintiff, who replied it was- the first he had heard of it; and that Allen admitted he had made the offer for the iron, but thought the defend [13] ants had not fulfilled their part of the contract and the thing was thrown up. When it is remembered that the plaintiff was absent at the' time the agreement was made for the sale of the iron and copper, and did not return until about the first of November, and during such absence his business was entirely under the control and management of Allen, and the clerk who notified Curtiss that he did not want the iron, it will be seen that there was an unequivocal disaffirmance of the contract by the same persons through whose agencies it wag first made, if the referee believed the evidence they gave, and this he must have done before he could reach the conclusions contained in his report. Indeed, when the evidence of Allen and the clerk is considered, with the interview which Deming had with the plaintiff, it is very difficult to see how he could have concluded otherwise. After that interview, there was no negotiations for reviving the agreement, and nothing said or done indicating any intention to renew or revive it. The mere sale of a part of the iron, accompanied 'with a statement which the referee finds to have been made, was not sufficient to produce that result. It follows, therefore, that none of the property was accepted or received by the plaintiff under the contract of sale, and that by the positive declaration of the statute the contract was void. The defendants insisted upon the argument that the referee should have allowed them the value of the iron sold by the plaintiff. But as that was not accepted under the contract, the plaintiff was not chargeable for it with the prices which it' specified, and the value of it was not otherwise proved. Even if it had been, that value could not be • allowed in this action, where the liability arose, as it did in this case, out of a wrongful conversion of the' property. If the sale had been made before the suit was commenced, the defendants might have waived the tort, and held the plaintiff liable for the proceeds received by him as money had and received to them usé, if it had appeared- what such [14] proceeds were. But no evidence was given from which the referee could have determined that as matter of fact. Besides that', the demand had no existence at the, time of the commencement of the action, which was sufficient to prevent its allowance either as a counter-claim or a set-off. (Code, § 150, sub. 2; 3 R. S. 5th ed. 634-5, § 12, subd. 4.) The judgment appealed from should be affirmed, with costs.