Johnson v. Cuttle

105 Mass. 447

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1870
• Status: Published

Opinion

Gray, J.

This is an action to.recover the price of goods sold and delivered by the plaintiffs to the defendant. The price being more than fifty dollars, and there being no memorandum in writing of the contract, and nothing given by the buyer in earnest to bind the bargain, or in part payment of the price, proof that he accepted and received part of the goods is required by the statute of frauds to make the contract valid. Gen. Sts. c. 105, § 5.

• Viewing the facts proved at the trial in the light most favorable to the plaintiffs, it is clear that there was no such acceptance and receipt of any part of the goods by the buyer as will satisfy' the statute. Mere delivery is not sufficient; there must be unequivocal proof of an acceptance and receipt by him. Such acceptance and receipt may indeed be through an authorized agent. But a common carrier, (whether selected by the seller or r by the buyer,) to whom the goods are intrusted without express instructions to do anything but to carry and deliver them to the buyer, is no more than an agent to carry and deliver the goods, nnrl has no implied authority to do the acts required to constitute an acceptance and receipt on the part of the buyer.and to take the case out of the statute of frauds. Snow v. Warner, 10 Met. 132. Frostburg Mining Co. v. New England Glass Co. 9 Cush. 115. Boardman v. Spooner, 13 Allen, 353. Quintard v. Bacon, 99 Mass. 185. Norman v. Phillips, 14 M. & W. 277. Nicholson v. Bower, 1 El. & El. 172.

The steamboat company having no authority to receive and accept the goods so as to bind the buyer, and there being no evi dence that the buyer,' in person or by any authorized agent, ever had actual possession of the goods, or opportunity to see them or ascertain whether they conformed to his order, or ever exercised any control over them by sale or otherwise, or even received any bill of lading of the goods, the case is within the statute of frauds, and the action cannot be maintained. Exceptions sustained.