Bartholomae & Co. v. Paull

PattoN, Judge, announced the opinion of the Court: The only question in this case is: Did the plaintiffs in error sell and deliver to the defendant in error the goods mentioned in the bill of particulars? Pratt testifies, that Pauli ordered him to select the goods and send them to him; this Pauli denies. It was for the jury to determine whom to believe. If Pauli ordered the goods, and they were shipped to and received by him, he was bound to accept them, if in quantity and quality they corresponded wilh the order. It required a distinct act of acceptance on the part of the buyer to complete the sale; the moment the contract was made, and the goods were shipped, the contract was executed, the buyer was entitled to the goods, and the seller to the price. 3 Parsons on Contracts 39; Benj. on Sales §§360, 362. This was at common law. But by the 17th section of the Statute of Frauds 29 Charles II in addition to the contract of sale and the delivery of the goods there must have been a distinct act of compliance on the part of the buyer to enable the seller to recover the price of the goods. Parsons on Contracts 40; Benj. on Sales §§ 130, 140. This section of the Statute of Frauds has never been adopted in our State. So that sale of goods, wares and merchandize, which includes the sale of all personal chattels, remains as at common law. [779] To constitute a sale of personal property, there must be a mutual agreement on the part of the vendor to sell and of the vendee to buy. This agreement may be established in various ways. It need not be express. It may be implied from their language, from their conduct, or may be signified by a nod or a gesture, or may be inferred in some cases by silence. Benj. on Sales § 38. Á sale will be implied, where a person receives goods sent to him and deals with them as his own, or does such acts towards them, as would be inconsistent with the ownership of another, as where he offers them for sale, (Benj. on Sales § 703) or changes their condition (Id. § 161), or where he does not in a reasonable time repel the implication by returning the goods, or notifying the vendor, that he doesnot aceeptthem and will not become the buyer (Id. § 703; Downs v. March, 29 Conn. 409; Sherman v. Sherman, 2 Vern. 276; Treadwell v. Reynolds, 39 Conn. 31; Milner v. Tucker, 1 Car. & P. 15; Willis v. Jernegan, 2 Atk. 251; Percival v. Blake, 2 Car. & P. 514; Corning v. Colt, 5 Wend. 253.) What isa reasonable time is a question of fact, to be determined by the jury according to the circumstances of each case. In the case of Milner v. Tucker, where the article was. not returned for six months, the defendant was held liable. The court said : “ When the defendant received the chandelier and found it incomplete and inadequate to the room, he should have given the plaintiff notice immediately, and have returned it as soon as he could.” In the case of Percival v. Blake, the defendant was held liable, where he retained the article for two months without making objection. In the case of Sherman v. Sherman, it was held : “Among merchants, if an account current be sent from one to another, who receives it . and makes no objection for two or three posts, this is looked upon as an allowance of the amount.” It was held in the case of Downs v. March, that the defendant gave no notice to the plaintiff of his refusal to accept the pumps and made no reply to the plaintiffs letter stating they had been sent, and was therefore liable. The court said : “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 ob- • jections. The defendant’s silence upon the receipt of the plain [780] tiff’s letter and bill of parcels was evidence of another kind-indeed but equally satisfactory, if not absolutely conclusive.” In the case of Treadwell v. Reynolds, notice was not given for six or eight weeks of a refusal to accept the goods. In the opinion the court says: “It is to be observed, that the defendant made no objection to the quantity or quality of the wool, and therefore no time was required for examination; but his -refusal to accept was solely for the reason, that it was not purchased and delivered wdthin the time authorized nor till after he had closed the business for the season. It was his duty therefore to give notice immediately. Had he known the name and residence of the plaintiff in the absence of any and special circumstances requiring or justifying the delay, it would not be unreasonable to require him to write as early as the day after the wool was received. A .delay of three days unexplained would have been unreasonable.” Upon the authorities it is plain, that it is the clear duty of one merchant, who receives goods from another with a bill showing they are sent as a sale, to notify the sender, that he will not receive the goods or become liable for them, unless they are detained for the purpose of examining the quantity and quality, which must be done in a reasonable time according to the circumstances of the case. I think the statements made by Pauli to Butler & Orr as to the goods in this case were competent as part of the res gestae. But those statements cannot alter the character of the acts, which accompanied them. If Pauli after his statement to Butler had notified the plaintiffs in a reasonable time, that he would not take the goods, it would have been a circumstance corroborative of his denial of the alleged contract of purchase in New York. So his statement to Orr, that the goods were not his, would have shown his understanding of the conversation with Pratt in New York ; but neither the statement to Butler nor to Orr can alter the question, whether the law does not raise by implication a liability because of the delay in notifying the plaintiffs in error, that he would not take the goods, and in exercising such control over them as was inconsistent with the ownership in another. He permitted Orr to remove the goods, and subsequently, when he packed the goods to return them, he permitted Orr to appropriate a portion of [781] them to his own use. He was not the plaintiffs’ agent; he was their vendee or the custodian merely of the goods, and as such he had no power to allow another to appropriate them. If he did, it was the exercise of such act of ownership, as made him liable as purchaser. Suppose he had allowed an insolvent man to take the whole of these goods, could he escape liability on the ground, that he was not the purchaser, but the insolvent was ? I think clearly not. It was a dealing with these goods in a way, which was inconsistent with any body else’s ownership. Applying the foregoing principles to the,instructions in this case it will be .seen, that the court erred in refusing to give the second, third, fifth, sixth, eighth, ninth and tenth instructions asked for by the plaintiff in error. Some of those' instructions were not accurately drawn, but they sufficiently set forth the law to make it the duty of the court to give them as they were presented, or to modify them. The first instruction is not applicable to the nature of the action, though its purpose doubtless was to cover the principle expressed in the second instruction. The fourth instruction is wrong, because what is a reasonable time is a question for the jury and not for the court in an instruction. The seventh instruction was also wrong, because it merely contains an argument and not a principle of law, but an inference of fact. The court therefore properly refused to give these instructions. The second, third and fourth instructions given at the instance of the defendant were improperly given, because they were calculated to mislead the jury. The fifth instruction was erroneous, because not applicable to a common law sale of goods, but only to a sale under the statute of frauds, which is not in force with us. As to the reading of the extract from Pratt’s letter, the rest of the letter is not before this Court, and therefore it does not appear why it was not read; but the extract in itself is not inadmissible evidence. I am of opinion to reverse the judgment of the court below with costs, and to remand the case for a new trial to be had therein according to the principles settled in this opinion and further according to law. The Other Judges CoNcurred. Judgment Reversed. Case Remanded.