Peck v. Abbott & Fernald Co.

By the Court. This is an action of contract to recover damages alleged to have been sustained by the breach of an oral contract, made by the defendant, to buy a carload of oats to be delivered in the future for $802.50. There was no evidence of giving anything in earnest to bind the contract, or in part payment, by the defendant. It refused to take the goods when delivery was tendered. The answer set up the statute of frauds. St. 1908, c. 237, § 4. The sale plainly was within its terms, and hence, unenforceable. The plaintiff seeks to avoid the force of this defence by reliance upon that part of the section, clause (1), to the effect that an oral contract of sale may be valid when “the buyer shall accept part of the goods . . . and actually receive the same,” and of that part of clause (3) of the same section, to the effect that there is “acceptance” of the goods under the sales act “when the buyer, [425] either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.” There was no “actual receipt” of the goods by the buyer. There was no evidence of its assent to become the owner of any specific goods. Such acceptance would seem to have been impossible, as the goods were sold for future delivery, and, long before the time for the delivery arrived, the transaction was repudiated by the defendant. The mere setting apart of the carload for the defendant by the seller, without more, was not an acceptance by the buyer. Judgment for the defendant.