Shindler v. Houston

1 How. App. Cas. 680

Opinion

Decision.—Judgments reversed, with venire de novo, by the supreme court—costs to abide event. For affirmance—Jewett, Ch. J., and Gray, J. For reversal—Bronson, Jones, Gardiner, Wright, Johnson and Ruggles, JJ.

Note.—Gardiner, Bronson and Wright, judges, delivered written opinions, in which they substantially held,—That the statute of fraudulent conveyances and contracts pronounced this agreement, when made, void, unless the buyer should ,f accept and receive some part of the goods.” The language is unequivocal, and demands the action of both parties; for acceptance implies delivery, and there can be no complete delivery without acceptance. The defendant, however, said nothing, and did nothing subsequent to the agreement, except through his agent, to repudiate the contract. There was consequently no evidence of delivery.

Mere words of a contract, unaccompanied by any act, can not amount to a-delivery. A writing must be made—part of the purchase money must be paid, or the buyer must accept and receive part of the goods. Here there was no delivery, either actual or symbolical.

There must not only be a delivery by the seller, but an ultimate acceptance of the possession of the goods by the buyer. And this delivery and acceptance can only be evinced by unequivocal acts, independent of the proof of the contract.

Reported 1 Comstock, 261.