Kemensky v. Chapin

Braley, J. Independently of R. L. c. 74, § 5, which makes unenforceable a contract for the sale of goods for $50 or more where there is neither a memorandum in writing nor a partial payment of the price, unless the purchaser receives and accepts a part of the goods sold, it became a question of fact whether the onions which the plaintiff delivered corresponded in size and quality with those shown by the sample. Townsend v. Hargraves, 118 Mass. 325, 332. McLean v. Richardson, 127 Mass. 339. Obery v. Lander, 179 Mass. 125, 131. But, if upon this issue the verdict might have been in his favor, as the statute of frauds had been pleaded, the plaintiff, before he could recover, was obliged to offer some evidence which tended to show an acceptance by the defendants. Snow v. Warner, 10 Met. 132, 137, 138. Davis v. Eastman, 1 Allen, 422. Goddard v. Binney, 115 Mass. 450, 456. Safford v. McDonough, 120 Mass. 290. His argument that this proof was unnecessary as the correspondence previous to delivery, when taken in connection with the shipping receipt, constituted a sufficient memorandum to satisfy the statute, fails, because these papers are silent as to the essential element of price. Waterman v. Meigs, 4 Cush. 497. Smith v. Colby, 136 Mass. 562. By the terms of the sale, which for the purposes of these exceptions must be taken to be as stated by the plaintiff, although the delivery to the railroad company selected by them was a delivery to the defendants, yet as the carrier was authorized only to receive the onions for transportation there was no express or implied authority conferred to accept, and under such conditions mere delivery does not constitute an acceptance. Johnson v. Cuttle, 105 Mass. 447. Atherton v. Newhall, 123 Mass. 141. Compare Strong v. Dodds, 47 Vt. 348. In Remick v. Sandford, 120 Mass. 309,316,it is said: “If the [506] buyer accepts the goods as those which he purchased, he may afterwards reject them, if they are not what they were warranted to be, but the statute is satisfied.” See also Frostburg Mining Co. v. New England Glass Co. 9 Cush. 115. If there was a transfer of possession not only to the carrier, but subsequently by the actual receipt of the car and its contents by the defendants at their place of business, this transfer cannot be treated as constituting an acceptance, which means an assent by the buyer as owner to take, in whole or in part, the merchandise delivered as being that for which he bargained. To determine this question the ordinary test is whether the conduct of the buyer in dealing with the goods is such as fairly to indicate an assertion of ownership, and where the sale is upon an express or implied warranty an examination at the time of delivery, and nothing more, is insufficient. Remick v. Sandford, ubi supra. Under the terms of sale the parties contemplated that at some period the defendants should have an opportunity to ascertain if in bulk the onions corresponded with those shown by the sample. Upon the arrival of the car this right was exercised, but the examination being for this specific purpose could not be deemed an act of acceptance. Remick v. Sandford, ubi supra. Taylor v. Smith, [1893] 2 Q. B. 65, 71. See also Devine v. Warner, 75 Conn. 375, 380; Lloyd v. Wright, 25 Ga. 215; Jones v. Mechanics Bank, 29 Md. 287; Hewes v. Jordan, 39 Md. 472; Maxwell v. Brown, 39 Maine, 98; Edwards v. Grand Trunk Railway, 48 Maine, 379, 381; Smith v. Brennan, 62 Mich. 349; Fontaine v. Bush, 40 Minn. 141; Clark v. Labreche, 63 N. H. 397; Shindler v. Houston, 1 Comst. 261, 269; Stone v. Browning, 51 N. Y. 211; S. C. 68 N. Y. 598; Cooke v. Millard, 65 N. Y. 352, 368; Gibbs v. Benjamin, 45 Vt. 124; Hill v. McDonald, 17 Wis. 97, 101; Bacon v. Eccles, 43 Wis. 227, 237; Browne, St. of Frauds, (5th ed.) § 316, a-c; Benjamin, Sales, § 214. After examination the defendants declined to accept, and immediately notified the plaintiff by letter stating their reasons, and while the jury could have found that in fact these reasons were unfounded, such a finding would have been inconclusive, as under the statute the buyer is at liberty to refuse, even if his action could be found to have been arbitrary and wholly unreasonable. The defendants acted solely within their rights, even if all the [507] bags were opened for the purpose of inspecting the contents of each, as in no other satisfactory way could a comparison be made between the sample and the consignment received. Up to this, point, therefore, there had been no assumption of ownership sufficient to satisfy the statute. Knight v. Mann, 118 Mass. 143. Remick v. Sandford, ubi supra. By directing the transfer of the car to the general yard of the railroad, after their notice to the plaintiff, they did not exercise any dominion as owners over its contents, as they were only taking the steps usually required to indicate positively that they declined to accept and that thereafter the onions were subject to the plaintiff’s disposal. Atherton v. Newhall, ubi supra. Dorr v. Fisher, 1 Cush. 271. Douglass Axe Manuf. Co. v. Gardner, 10 Cush. 88, 90. Cox v. Willey, 183 Mass. 410, 412. The case appears to be one of peculiar hardship to the plaintiff, but as the unequivocal acts of the defendants are insufficient to show acceptance, a verdict in their favor was rightly ordered. Remick v. Sandford, 120 Mass. 309. Knight v. Mann, 118 Mass. 143. Atherton v. Newhall, 123 Mass. 141. Denny v. Williams, 5 Allen, 1. Howard v. Borden, 13 Allen, 299, 300. Stone v. Browning, 51 N. Y. 211; S. C. 68 N. Y. 598. Exceptions overruled.