Simmons Hardware Co. v. Mullen

Gilfillan, C. J. The agreement for the sale of the goods by plaintiff to Whiteher, the price exceeding $50, and there being no memorandum in writing, and no part of the purchase-money being paid, was void under the statute of frauds, unless there was not only a delivery by the vendor, but an acceptance on the part of the purchaser. The authorities are substantially uniform that delivery by the seller 196 to a carrier selected by him, for the purpose of transportation, is not of itself an acceptance to take the case out of the operation of the statute. Norman v. Phillips, 14 M. & W. 277; Hanson v. Armitage, 5 Barn. & Ald. 557; Maxwell v. Brown, 39 Me. 98; Johnson v. Cuttle, 105 Mass. 447; Grimes v. Van Vechten, 20 Mich. 410; Allard v. Greasert, 61 N. Y. 1; Keiwert v. Meyer, 62 Ind. 587; Taylor v. Mueller, 30 Minn. 343. The plaintiff in this instance selected the carrier. It is unnecessary, therefore, to consider what would have been the effect, in respect to taking the case out of the statute, of delivery to a carrier designated by the purchaser. Whitcher not having done any act of acceptance, the goods still belonged to the plaintiff, and could not have been levied on as Whitcher’s. Judgment affirmed.