Roberts v. Mackowski

Owen, J. The action was brought to recover on an oral contract for the sale of goods amounting to more than $50. The defendant claims that the contract is void under the statute of frauds. The question presented is whether there was such an acceptance or receipt of the goods on the part of the defendant as to take the contract out of the statute. Sub. 1, sec. 1684f — 4, Stats., provides that “A contract to sell or a sale of any goods or choses in action of the value of fifty dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, [422] and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.” ' Sub. 3 of that section provides: “There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.” Leaving out of discussion the- question of whether the silence of defendant from December 1st to February 16th can be construed as conduct amounting to his assent to becoming the owner of the goods, we find nothing in the record which can satisfy the requirement of the statute that he actually received the same. As said in Friedman v. Plous, 158 Wis. 435, 149 N. W. 218: “The statute . . . seems to separate acceptance from receipt and provide that the former requirement may be satisfied by words or conduct, while the latter presupposes a delivery by .the seller and requires some intentional act of ’ receipt on the part of the purchaser.” , Obviously there can be no actual receipt on the part of the purchaser in the absence of some affirmative action on his part. Actual receipt cannot result, from passive or negative conduct. At all times the defendant consistently and persistently refused to receive the shipment. There was no conduct on his part amounting to an actual receipt of the goods or as indicating any intention entertained by him to receive them. The contract was therefore void under sec. 1684i — 4 as well as under sec. 2308, Stats. Appellant relies upon the principle that where property is delivered by one person to another in fulfilment of an execu-tory contract between them requiring such delivery, and the latter neglects to notify the former that the property is not accepted as complying with the contract within a reasonable time and after a fair opportunity to accept it, an acceptance [423] will be inferred. He argues that under this principle, together with the further rule that delivery to a common carrier is delivery to the consignee, it was the duty of the defendant to notify the plaintiff of his refusal to accept the law. ‘While that argument is pertinent where there is a valid contract of sale, it cannot be invoked to validate a void contract when such validation requires affirmative action on the part of the vendee. By the Court. — Judgment affirmed, shipment, and that because he did not do so within a reasonable time his receipt and acceptance follow as a matter of