Spencer v. Hale

The opinion of the court was delivered by Redeield, Ch. J. This is an action of book account to recover the price of a quantity of fence posts sold by the plaintiff to the defendant, and by his direction delivered on board cars, at the railway station in Shaftsbury, furnished by the defendant for that [317] purpose; and which by the station agent at that place wei'e forwarded to the defendant at some place in the state of New York. There is nothing in the case to show that the parties contemplated a delivery or acceptance at any other place than Shaftsbury, and every reason to presume that they did not. It does not appear that the plaintiff knew to what particular place the posts were to be forwarded, or by what instrumentality, although it is probable he may have known more on these points than is stated in the report. He had nothing to do with the conveyance either in selecting the carrier or becoming in any way responsible for his conduct. The delivery and acceptance were then perfected, as it seems to us, at the time the posts were sent from the station at Shaftsbury. It is undoubtedly true that the defendant at that time aud place had a right to repudiate the posts after delivery. In other words, in order to perfect the case, under the statute of frauds, something more is necessary than a mere delivery of the goods. In the language of the statute, the purchaser must “ accept and receive part of the goods.” But this may be constructive as well as actual, and it may be done through the instrumentality of an agent of the purchaser as well as personally. It was once held, that a delivery to a common carrier, not selected by the purchaser, by the latter’s direction, was an acceptance by the purchaser, within the statute. Hart v. Sattley, 3 Camp. 528. In this case the judge told the jury that the purchaser must be considered as having constituted the carrier his agent “ to accept and receive the goods.” But this case has not been followed in later cases. Hanson v. Armitage, 5 B. and Ald. 557; Acebal v. Levy, 10 Bing. 376. But it seems now to be regarded, as well settled, that if the purchaser name the carrier he is 'bound by the delivery to such carrier. The carrier becomes his agent for the acceptance, and if the goods are accepted by the carrier and forwarded to the purchaser, he becomes liable for the price. 2 Parsons on Cont. 328, 329; Bushell v. Wheeler, 15 Q. B. 422. But this will depend upon the intention of the parties to be gathered from the circumstances of each case to some extent. The present case is not different in principle from what it would [318] be if the goods wei-e to have been sent to New Orleans, or to Liverpool, as it seems to us. In neither ease would it be expected the seller would take the risk of the conveyance, or give the purchaser an absolute election, whether to accept the goods on their arrival or not. This case, as it seems to us, is not different from what it would have been if the delivery were to have been made upon the grounds of the company, about their station. The railway company had been directed by the purchaser to load them into cars. And in such a case there- could be no ground to question that the removal of the goods, although by an agent, and that agent a common carrier, would be a sufficient receipt and acceptance. When each case is determined upon its facts, as cases must be upon this subject, to a considerable extent, they will not always appear consistent with each other. There will be extreme cases which seem to impinge upon the principle. But they cannot be followed any further than they follow the principle upon which they profess to go. The cases all agree that the purchaser may so conduct as to waive the right of repudiation of the goods, which, under the statute, he undoubtedly possesses up to and at the time of delivery, and in some cases until the goods come to the actual custody of the vendee. In the present case there is nothing to induce the court to believe that the parties probably contemplated any such right of repudiation after the goods left the station at Shaftsbury. It seems to us, the more reasonable construction of the contract is that no such right was expected to have been exercised after that time. If not, then the omission of the defendant to exercise it at the proper time was a waiver of the right and equivalent to its positive exercise by acceptance. But if the contract could fairly receive the construction that the purchaser had the right of election after the arrival of the posts and an opportunity of inspection, it seems to us that he must be regarded in the present case, as having acquiesced in the delivery and acceptance, so long and in such a manner that his subsequent rejection cannot be held binding upon the plaintiff. For it seems that a day or two after the posts were forwarded, the defendant was informed by the plaintiff of that fact, and that he then promised to send the money for the price, and gave no intimation of [319] any dissatisfaction for about ten days, and never' returned the posts. It can hardly be supposed if the defendant had any such right of election after the arrival of the' goods at their destination, that it could have been expected, under the circumstances, that he should have been allowed so long a time for its exercise, or that the plaintiff should be left to find his goods when he could, and return them at his own expense. In fact,.the defendant’s acquiescence is an acceptance. The cases all agree that even where the vendee has an election'to repudiate the delivery, he must do it immediately, or he is bound by the acquiescence as an acceptance. The strongest case for the defendant read at the bar, that of Hunt v. Hecht, 20 Eng. L. and E. 524, holds expressly that the purchaser may, by his conduct, deprive himself of the option to secured to him under the statute. This we think the defendant in this case did do, if his option were to have been exercised where the goods were delivered on board the cars, by allowing his agent to forward them to him in New York; and if the election could have been exercised after the arrival of the articles, which it seems to us unreasonable to allow, then the right is expressly waived by the promise to pay, and impliedly by the delay. So that upon every ground it seems to us the plaintiff is entitled to recover the price of the posts. Judgment is affirmed.