Capitol Piece Dye Works, Inc. v. Klein Coat Corp. , 279 A.D. 1052 ( 1952 )

Per Curiam.

The complaint alleges that defendant agreed to sell and deliver to plaintiff 400 pieces of woolen fabric at $3 per yard.

Defendant’s motion has been granted to dismiss the complaint upon the ground that the contract was oral, and therefore void under section 85 of the Personal Property Law. The contract was admittedly void unless there was partial delivery of the goods. Subdivision 1 of section 85 sustains such oral agreements if “the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same ”.

The facts concerning this transaction are undisputed. The buyer sent its truck to the seller’s place of business to call for the woolens. After part of the goods had been loaded upon the truck, an argument arose concerning whether they were to be paid for by cash or on credit. When the plaintiff’s representatives declined to pay cash, defendant’s president ordered the truck to be unloaded, which was done by defendant’s employees.

Special Term correctly held that “ The temporary presence of the goods on the plaintiff’s truck cannot, in the circumstances of this case, be regarded as an acceptance and actual receipt by the plaintiff.” It is unnecessary to decide the point adverted to in the dissenting opinion, and discussed in section 75 of Williston on Sales (Yol. 1, Rev. ed.) whether there may be acceptance before the goods have been counted, weighed or measured to fix the price. The decision of this ease depends upon the simple question whether, under the undisputed facts contained in the affidavits before us, any of these goods were ever delivered so as to come under the dominion of the purchaser. Plaintiff’s truck never took any of these goods away from defendant’s place of business, and, although some of the woolens were temporarily put into the truck, it is manifest that they were not regarded as having passed into the possession or to have come under the dominion of plaintiff, inasmuch as they were entirely removed at the order of defendant’s president before the truck left the curb. Plaintiff had not accepted them subject to count to determine the price; plaintiff never accepted them at all, due to the argument which arose on the threshold of delivery concerning the terms of payment. That is particularly a situation within the Statute of Frauds.

The order appealed from should be affirmed, with $20 costs and printing disbursements to respondent.