Parker v. Mitchell

5 N.H. 165

• Court: Superior Court of New Hampshire
• Decided: February 15, 1830
• Status: Published

Opinion

By the court.

The circumstance, that the buyer in this case took the anvil and moved it, is not conclusive evidence to show a delivery by the seller, or an acceptance by the buyer. 2 B. & C. 511, Philips v. Bistoli.

At farthest, it only shows what might perhaps be considered an acceptance, if the seller elected so to consider it. For it Is clear the buyer had no right to take the article until the security was given.

But if the seller elected to consider it a sale and delivery, still it was a sale, under a special contract, that a credit should be given for the price ; and indebitatus as-sumpsit could not be maintained for the price, until the term of the credit expired. This is now well settled. 9 East, 498, Hoskins v. Duperoy; 4 B. & P. 330, Brook v. White; 4 East, 147 Mussen v. Price; 3 B. & P. 582, Dutton v. Solomonson; 5 Pick. 15, Loring v. Gurney.

If the seller in this case had any cause of action, when this suit was commenced, it was for a breach of the special contract.

We are, therefore, of opinion, that the direction of the court below to the jury was correct, and that the judgment must be affirmed.

Judgment affirmed*