Fagan v. Faulkner

By the Court, Paschal, J. This Court has already ruled, at the .present term, that the practice of compelling a plaintiff to a peremptory non suit will not be tolerated. See Martin & Van Horn vs. Webb, ante. But as the finding and judgment in this case is a bar to a future action, we are therefore only to consider the motion as in the nature of an instruction asked; and that the Court found upon the merits of the case, as presented by the evidence. The question, therefore, for our consideration is, was there such a state of facts proven as would have authorized a verdict for the plaintiff, on an in-debitatus assumpsit? The principles on this subject are few and familiar. They have ■varied very little in their application in adjudged cases. The whole rule may be resolved into a few words. When something remains to be done, as between the seller and buyer, or for the purpose of ascertaining either the quantity or price of the article sold, there is no delivery, and the property does not pass, though the price be in part-paid. And there need not be an express agreement that something further shall be done. It is enough that it appear, from the circumstances of the case, to be necessary. Thus, where the plaintiffs, having cotton at their stores, in Brooklyn, 69 bales marked G. G. & Co., at the store of B., and 30 of the same mark at the store of M. & W., sold 66 bales marked G. G. & Co. to the defendants, delivering them atpro forma bill of parcels, thus: “ 66 bales, say 19,390 lbs,, $>12 per cwt., one per cent, off,” the defendants paying, at the time, $1800, in part for the whole. Then the cotton in M. & W’s store was destroyed by fire, and the defendants demanded of the plaintiffs an order for the 66 bales, which was refused; but the plaintiffs gave an order for 36 bales. These were then weighed by the plaintiffs? and another bill of parcels delivered to the defendants, including the 36 bales, according to the weighmaster’s bill, and 30 bales at a certain weight each, with the remark, “deduct, for supposed loss, 150.” The 36 bales were delivered at the lime of weighing: “Held, that the properly of the 30 bales did not vest in the defendants, and that therefore the plaintiffs could not recover the price. Rasselyc vs. Mackie, 6 Cow. 250. Such cases have generally been held to come within the statute of frauds. And thus, where a party purchased several articles in a shop, at separate prices, and some were severed from the bulk, and marked by him, it was held that the whole purchase was an entire contract, and being above £10, was within the statute, and no sufficient transfer and acceptance to bring it within the exception of the 17th clause; and that, to satisfy the exception, there must be an actual transfer and acceptance of the goods, or part thereof. Baldny vs. Parker, 3 Barn, and Cress. 37. 2 Starkie Ev. 5 American edition, 354. Where goods were made to defendant’s order, and he took away some part, held, that it was not a sufficient acceptance of the goods within the statute, and that the plaintiff could not recover on the count for goods sold and delivered. Thompson vs. Maarom, 3 B. & C. 1. See 4 Wheaton, 89, note a, where the decisions-on this section of the statute are collected and accurately stated. The cases on this subject are numerous, and such as are doubtless familiar to the profession. A further citation of authorities is, therefore, deemed unnecessary. The 17th section of chap. 3, 29 Car. 2, is in the following words: “ No contract for the sale of any goods, wares, and merchandises; for the price of £10 or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum, in writing, of the said bargain, be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.” Our statute on the subject varies very little. The 2d section, chap. 30, p. 187, is in the following words: “No contract for the sale of goods, wares, and merchandise, for the price of thirty dollars or upwards, shall be binding on the parties, unless, first, there be some note or memorandum signed by the party to be charged; or, second, the purchaser shall accept a part of the goods sold, and actually receive the same; or, third, shall give something in earnest to bind the bargain, or in part payment thereof.” By a close analysis of this statute, it will be seen that the decisions which are applicable to the English statute, are also applicable to - ours. In the case under consideration, there was, in our opinion, no sale or delivery such as to take the case out of the statute. In this case, two things remained to be done between the plaintiff and defendant: the price and quantity were yet to be fixed. This could not be done by first supposing a given quantity not ascertained by proof, and then arrive at the price by proving a quantum valebftnt, and thereby implying a promise to pay. This is travelling from the unknown to the still more unknown — from the uncertain to that which is still more uncertain. The bargain, so far as the proof goes, was to purchase fodder of the plaintiff. But the quantity and price were not agreed upon. The plaintiff might, therefore, have delivered him any other fodder as well as the fodder in the particular field. Proof of an acknowledgment of the defendant that he was to take certain stacks of fodder from the plaintiff, was afterwards attempted. But this, at least, only proves a promise to purchase, but does not prove a delivery of the property in earnest. If he really made such a bargain, and in consequence of the non fulfilment of his engagement, the plaintiff lost a sale of the property, or suffered, damage, she might have her special action on the case for consequential damages, but she could not maintain indebitatus assumpsit. Even in cash sales, two things are necessary to the transfer of title to personal property: payment by the ven-dee, and actual or constructive possession by the vendor. Ward vs. Shaw, 7 Wend. 404. Could Faulkner have maintained trover or deti-nue against Fagan, had he demanded the property, and she had refused to deliver it? We think not, because he had neither paid for the property, nor paid earnest, nor obtained a delivery actual or constructive. The rights of vendor and vendee must be mutual, except so far as the right of the vendee remains to seize the property in transitu. Judgment affirmed.