Downs v. Marsh

Sanford, J. This is an action of assumpsit, in which the plaintiffs claim to recover for goods sold. The defendant, living at Ware, ordered the pumps for which the suit was brought, together with certain pipe-boxes and deep well pumps, to be sent to him by the plaintiffs, pump manufacturers at Seneca Falls. The plaintiffs put up and shipped the pumps sued for, as directed in the order, (but not the pipe-boxes or deep well pumps,) and forwarded to the defendant a regular [413] bill of parcels of the goods sent, together with a letter informing him of the fact of their shipment “ to him,” and stating the reason of their omission to send the residue of the order. The bill and letter were duly received by the defendant, but whether the goods were in fact received by him or not, the record does not inform us. The defendant gave the plaintiffs no notice of his refusal to accept the pumps forwarded, and no reply was made to the plaintiffs’ letter; and after the lapse of five years this suit was brought. Now it is conceded that the whole parcel of goods ordered not having been sent, the property in those actually forwarded did not vest in the defendant upon their delivery to the carrier, nor was the defendant bound to accept them upon their arrival at the place of their destination. To bind the purchaser to pay for goods forwarded upon his order, the terms of the order must be complied with; and when only part of the goods ordered have been forwarded, there is no express contract between the parties xipon which an action can be maintained for the price of them, and no implied promise to pay for them arises until the purchaser has received them. But if the goods in fact come to the buyer’s hands and use, then the law implies a promise to pay for them, and an action for goods sold and delivered may be maintained thereon. Corning v. Colt, 5 Wend., 253. The inquiry in this case therefore was, whether the defendant had accepted these goods or not. He had a right to reject them, because the terms of his order had not been complied with, but he might waive the exercise of that right, and if he did, he would be liable for. the goods actually received in the same manner as if his whole order had been supplied. And if the goods actually came to his use, then he would be liable upon an implied promise raised by law to pay for them, and in either case this action would be sustainable. The defendant’s omission to reply to the plaintiffs’ letter of the 30th of April, was evidence of an acceptance of the goods, and amounted to a waiver of all objections to them on account of the plaintiffs’ partial compliance with the order. The [414] plaintiffs’ letter and the bill of parcels accompanying it, were duly received. These papers informed the defendant that the goods sued for had been shipped to him, pursuant to his order, in his name and upon his credit, and also informed him why the residue- of the goods ordered were not sent; and from the defendant’s silence the plaintiffs had a right to infer that he was satisfied with the shipment, that lie waived all'objections to it, and received the goods as if the order had been filled in exact accordance with its terms, and to conduct accordingly. If it had been proved by direct evidence that the goods actually came to the defendant’s use, that would have been conclusive proof of a waiver of all objections. Corning v. Colt, 5 Wend., 256. The defendant’s silence upon the receipt of the plaintiffs’ letter and bill of parcels was evidence of another kind indeed, but equally satisfactory, if not absolutely conclusive. 1 Greenl. Ev., § 197. Willis v. Jernegan, 2 Atk., 252. Murray v. Toland, 3 Johns. Cha., 575. The reason assigned by the plaintiffs for their omission to forward all the goods ordered was no excuse for such omission, and in no degree affected the defendant’s rights. But the plaintiffs’ letter gave to the defendant no authority to hand over the goods actually forwarded to Witherell but upon the terms and subject to the condition in that letter prescribed — to wit, that Witherell should remit the money for them by mail. It contained no intimation of the plaintiffs’ willingness to accept Witherell for their debtor instead of the defendant. The defendant could have saved himself from liability to pay for these goods by rejecting them absolutely, and then, either giving notice of such rejection, or turning them over to Witherell upon the terms by the plaintiffs prescribed; but in no other way. He adopted neither of these courses. He indeed gave the plaintiffs’ letter to Witherell and thus evinced his willingness that the latter should have the goods, but, until Witherell remitted the money as required by the plaintiffs, their right to look to the defendant as their debtor remained unimpaired. [415] We think the rulings of the superior court were right, and that a new trial ought to be refused. In this opinion the other judges concurred. New trial not advised.