Knight v. Mann

120 Mass. 219

Opinion

Erjdicott, J.

This case was before the court at a previous stage. 118 Mass. 143. The only additional fact proved at the second trial was, that after the defendant was told that the skins were lying in the doorway, they were pointed out to him, and he passed out of the door where they were lying, and said he would send for them. That there was sufficient evidence of delivery has been conceded throughout this controversy; the question being whether, on the facts reported, there was evidence of acceptance within the statute of frauds. It is enough to say that the additional fact does not necessarily show an acceptance, and the presiding judge could not properly have ruled as requested by the plaintiff; and, having found for the defendant, he must necessarily have found that there was “ not such an unequivocal act of acceptance as would take the case out of the statute.” The plaintiff therefore has no ground of exception. ■ As it was part of the contract that .the defendant should send for the skins, the fact that he said he would do so, when he left the store, does not add to the effect of the evidence.

Exceptions overruled.