Glen v. Whitaker , 51 Barb. 451 ( 1868 )

By the Court, James C. Smith, J.

The principal question in this case, is whether the delivery by the plaintiffs to the rail road company, of the machine in controversy, in pursuance of the order and direction of the defendant, was, in law, a delivery to him, and ipso facto an acceptance by him of the property, as decided by the referee.

The referee found as facts, that the parties made an agreement, without writing, for the sale and delivery by the plaintiffs to the defendant, of a' clover machine of the value of $375; that at the time when the agreement was made, a machine of the value and description of the one mentioned in the agreement was completed and • pointed out to the defendant and examined by Shattuck, to whom the defendant directed the plaintiffs to ship said machine by railroad; and that the machine was so shipped and received by Shattuck, in due course, and was retained by him with the knowledge of the defendant, and has not been returned to the plaintiffs.

These findings are supported, either by testimony which is uncontradicted, or by conflicting testimony which would warrant a finding either way, and they are, therefore, conclusive. And they fully sustain the conclusion of the referee, that as between the vendors and vendee, the latter accepted the property.

It was long ago decided in England, that where a written order for goods is given, so as to take the case out of the statute, and the purchaser directs them to be sent by a particular carrier, the title vests in the vendee immediately upon the delivery to the carrier, and he is responsible to the vendee, though the goods be lost by the carrier, and never actually come to his possession. ( Vale v. Bayle, Cowp. 294.) Again, it was held that though the vendee do not name any particular carrier, but directs the goods to be sent by a carrier, the moment the goods are delivered to the carrier, it-operates as a delivery to the purchaser, and the whole property immediately vests in him. (Dutton v. Solomonson, 3 Bos. Pul. 582.) These cases, (as was remarked by Sutherland, J. in Outwater v. Dodge, (6 Wend. 401,) have been considered as justifying the inference that where goods are delivered upon a verbal order, the delivery to the carrier would be such an execution of the agreement on the part of the vendor, as to preclude him from taking advantage of the statute of frauds to reclaim the goods ; but that the vendee might still refuse to execute the parol agreement; that he might open and examine the goods, and after examination, return them. "Where the verbal order, however, is particular, both' as to the goods and the carrier, it has been regarded as furnishing a plausible ground for contending that such selection of the goods, and designation of the receiver, may amount to an acceptance, with which the actual delivery, though posterior in point of time, might be coupled by relation, so as to put the whole transaction out of the operation of the statute. The goods being fixed upon by the buyer, and the carrier named by him, the contract is established upon the evidence of the acts of the vendee. (See Roberts on Frauds, 180.) These views as to what acts of the vendee constitute an acceptance, seem to" have received the sanction of judicial authority in the case of The People v. Haynes, (14 Wend. 546.) In that case the court for the correction of errors, reversing the Supreme Court, held that where a purchase of merchandise is made, the goods selected by the purchaser, put in a box and the name of the purchaser and his place of residence marked thereon, and the box containing the goods sent by the vendor and put on board a steamboat designated by the purchaser, to be forwarded to his residence, the sale is complete, and the goods become the property of the purchaser. In-that case, it is true, the vendee and not the seller, insisted that the title passed by the delivery to the carrier, but the transaction was complete, as to the purchaser as well as the seller, he having previously selected the goods.

In the present case, we think it clear that the rights of the parties were fixed by the delivery of the machine to the carrier pursuant to the directions of the defendant, and that the title thereby passed to him. His letter, subsequently written, was ineffectual as a countermand. In the absence of fraud, or of evidence showing that the machine was not the same he selected, or that it was not in as good condition at the time of delivery, as it was at the time of selection, he had no right to return it after ) it was delivered to the carrier. The case is the same, in ' that respect, as if the delivery had been to himself, personally.

[Monroe General Term, June 1, 1868.

E. D. Smith, Johnson and J. C. Smith, Justices.]

These views lead to an affirmance of the judgment.

Judgment affirmed.