Strong, Whitney & Co. v. Dodds

The opinion of the court was delivered by Ross, J. I. The auditor correctly excluded the witness offered to show the admissions of James F. Gilbert. Gilbert was the agent of the plaintiffs in making the sale of the goods, and went to the witness, a practicing attorney, to have him bring a suit to enforce payment for the goods. The witness so far entered into the employment of the plaintiffs as to hear Gilbert’s account of the transaction, and then declined to bring the suit, for the sole reason that he did not think a suit could be maintained. On being asked to bring a suit for the plaintiffs, the witness, by listening to the detailed account of the transaction, and advising that a suit could not be maintained, was as directly in the employment of the plaintiffs, and as much entitled to payment for his services, as he would have been if he had made the writ in the suit. The communications made to him by Gilbert are privileged. The witness stood in a different relation to the plaintiffs from what the witness did in Earle v. Grout, 46 Vt. 113. In that case, the witness, though talked with, and asked by Earle his opinion as to whether he could maintain a suit against Grout, understood at the time of the conversation that Earle did not de — 354 — sire or intend to employ him to bring a suit, or to counsel him in regard to his rights in the matter. II. Neither does this case fall within the principle enunciated in Montgomery v. Edwards, 46 Vt. 151. In that class of cases, the plaintiff is under a disability in proving his case, because the contract is not in writing. The contract which is the foundation of the suit in such cases, is valid, but the statute has taken away the plaintiff’s right to prove it except by written evidence. When the defendant allows such a contract to be proved by parol evidence, he waives this statutory objection, and the court has only to enforce the contract as proved. The section of the statute within the operation of which the present case falls, does not wholly forbid the proving of the contract by parol testimony, but provides that the contract, though proved by such testimony, shall not be valid, unless “ the purchaser shall accept and receive a part of the goods so sold, or shall give something in earnest to bind the bargain, or in part payment.” The plaintiff could not object to the showing of the contract of the sale of the goods by parol testimony. His only right was to insist, as he did before the auditor, that he was not bound by such contract so proven, unless he had accepted and received the goods. Hence the vital question -in the case, is: III. Did the defendant accept and receive the goods in question? We denominate this as the vital question, because we do not think that Gilbert, the plaintiffs’ travelling agent and salesman, who appeared at the defendant’s store and bargained the goods in question to the defendant’s son and agent, can be regarded as the defendant’s agent in writing out and transmitting to the plaintiffs a bill of the goods bargained for. Both parties were represented in the transaction by agents. The kinds, quantities, qualities, and prices of the goods were agreed upon between these agents. The transaction is, in law, the same it would be if one of the plaintiffs had been present in person, and had there agreed upon the same particulars with the defendant in person, and had received from the defendant his verbal order for the goods, and had written it out and forwarded it to the firm of which he was a — 355 — member. It is not the personal power and presence of the agent that binds, but the legal presence and power of the principal in the person of the agent. Gilbert, in reducing to writing and forwarding the order, was not representing, or acting for, the defendant, but was recording and transmitting to his principals, the transaction which, in their name and behalf, he had concluded with the defendant by parol. The bill of goods signed and forwarded by him to the plaintiffs, was not “ some note or memorandum ” of the bargain, made in writing, and“ signed by the defendant,” such as is contemplated by § 2, ch. 66, Gen. Sts., to remove the sale from the operation of the Statute of Frauds. The facts reported by the auditor, in legal effect, are, that the defendant ordered the goods in question, therein specifying the kinds, quantities, and qualities, and directed the plaintiffs to deliver them, duly packed, to the railroad company, to be transported via Fairhaven to him at St. Albans. The plaintiffs selected and packed the goods, complying in all respects with the defendant’s order, and delivered them to the common carrier named, marked as directed, and advised the defendant thereof. This was done November 21st. The goods never came to the personal control or acceptance of the defendant. After going to St. Albans two or three times for the goods, and sending to inquire several times, the defendant, December 7, wrote the plaintiffs that he should not receive the goods, as it was too late in the season, &c. That there must be a receipt and acceptance by the purchaser of some part of the goods, when the sale is oral, to remove the statute disability, all the authorities agree. Green v. Merriam, 28 Vt. 801; Spencer v. Hale, 30 Vt. 314; Graham v. Fisher & Roberts, 30 Vt. 428; 2 Parsons Cont. 322, et seq. Do these facts show such a receipt and acceptance of the goods by the defendant, as is required by the statute to render the sale binding upon him ? The decision of this question depends largely upon the light in which the railroad company is to be regarded. If it is to be regarded as the agent and servant of the plaintiffs, the goods have never been accepted or received by the defendant. But if it is to be regarded as the agent and servant of the defendant, the goods have been received by him. but whether accepted, — 356 — may depend upon other considerations. We think the railroad' company must be regarded as the agent and servant of the defendant. He named it as the carrier to whom he desired the goods to be delivered. When the plaintiffs had delivered the goods to the railroad company, packed and marked to the defendant as he had directed, they had done all that was required of them to perfect the sale on their part. The goods had passed beyond their possession and control, save possibly the contingent right of stopping them while in transitu. The charges for conveying the goods to St. Albans were to be paid by the defendant. While conveying the goods from Albany to St. Albans, the railroad company was in the employ and service of the defendant. If the defendant had sent his hired servant with a team to the plaintiffs’ store in Albany, with a verbal order for the goods in question, no one would doubt but a delivery of the goods to the servant, and the loading them upon his team, would be a receipt of the goods by the defendant. It has generally been held that the delivery of goods by the vendor to a common carrier named by the purchaser, is a delivery to the purchaser. 2 Parsons Cont. 328, 329, and notes ; Spencer v. Hale, 30 Vt. 314. Whether the mere act of naming the carrier by the purchaser to whom the goods are to be delivered, is more significant in determining whether the purchaser has received the goods within the meaning of the statute, than the fact that the carrier transports the goods at the expense of the purchaser, may be doubtful. Any fact, it would seem, which clearly indicates that the carrier holds the possession of and transports the goods as the property of the purchaser, shows a receipt of the goods by the purchaser. We think it quite clear, both on authority and reason, that on the facts reported, the receipt of the goods by the railroad company was a receipt by the defendant, sufficient to remove the statute disability in that respect. We also think that the possession and control of the goods while being conveyed from Albany by the railroad company, must be regarded as the possession and control of the defendant, and that this was an acceptance of the goods by the defendant, within the meaning of the statute. He would had the right to have ended the possession and control of the rail — 357 — road company at any time after they had received the goods, and to have assumed personal possession and control of the same. We think, when the purchaser assumes control of the goods either personally or through an agent, he accepts them sufficiently to remove the statute disability. . No one, we think, would deny, that in the supposed case of the defendant’s having sent his own teamster to the plaintiffs’ store for the goods, the receipt and control of the goods by the teamster, would be such an acceptance by the defendant as would have removed the statute disability,Suppose the teamster, before the goods had come to the personal possession of the defendant, had destroyed or stolen them ; could the defendant have avoided paying the plaintiffs on the ground that he had not accepted them? We think not, provided the goods wore such as the defendant ordered. Green v. Merriam, 28 Vt. 801, is an. authority for the doctrine that all that a purchaser need do to accept personal property sold by parol, so as to remove the statute disability, is, to assume control over the property. The sheep in controversy in that case, were never in the exclusive possession of the defendant. The parties separated the sheep from the rest of the plaintiff’s flock, and while thus separated and in the plaintiff’s possession, the defendant employed the plaintiff to keep the sheep for him a few days. It was held that the defendant had accepted and received the sheep, sufficiently to remove the statute disability. The facts reported as to the defendant’s going and sending to St. Albans for the goods, established that the defendant understood the goods were his own. He went there to get his own goods, and not the goods of the plaintiffs. No doubt some confusion in the cases deciding what would or would not constitute an acceptance by the purchaser within the meaning of the statute, has arisen by not clearly distinguishing an acceptance by the purchaser that will remove the statute disability, from an acceptance that amounts to a waiver, at common law, by the purchaser, of his right to object to the goods because they do not answer to the order in quantity or quality. The latter does not arise till the purchaser has had a reasonable opportunity to examine the goods; the former arises when he assumes control over them personally or by his agent. By accepting the — 358 — goods so as to remove the statute disability, the purchaser does not, necessarily, waive his common-law right to reject or return them because they fail to answer his order in quantity or quality. Whether he does waive this right or not, must depend upon whether he has had a reasonable opportunity to examine the goods. When the purchaser in any way assumes control over the goods, he sufficiently accepts them to answer the statute. If on examination made within a reasonable time, the goods fail to answer his order, the vendee can refuse to receive them, or return them, on the ground that they are not such goods as he ordered, but not on account of the disability cast upon the plaintiff'by the Statute of-Frauds. If the vendee has assumed control over the goods as owner, and on examination they prove such in kind and quantity as he has verbally ordered, he cannot avoid his liability-to pay for them on the ground that the contract is void by the statute. These views of the law as applicable to the facts reported by the auditor, reverse the pro forma judgment of the county court; and judgment is rendered on the report for the plaintiffs to recover the amount found due by the auditor.