Vincent v. Germond

11 Johns. 283

• Court: New York Supreme Court
• Decided: August 15, 1814
• Status: Published

Opinion

Per Curiam.

No earnest money having been paid, nor any writing made between the parties relative to the contract, the question is, whether there was such a delivery of the cattle as to take the case out of the statute of frauds. It was not made a question whether the defendants were partners, so as to be bound by the acts of each other. It may be questioned whether what took place between B. Germond and the plaintiff if standing alone, would amount to a delivery; but the subsequent conduct of the other defendant, in taking away the three oxen, without any new contract, affords sufficient ground to infer a delivery. This was the exercise of an act of ownership over the property, in confirmation of the bargain. The defendants dealt with the oxen as their own, and as if in their actual possession, without asking any permission from the plaintiff for so doing. This must have been done in virtue of the right acquired by the original contract and transfer of the property. Such exercise of ownership, by selling part of the property, was, in the case of Chaplin v. Rogers, (1 East, 192.) held a sufficient delivery to take the case out of the statute. And the case of Elmore v. Stone (1 Taunt. Rep. 457.) is much stronger on this point. It was there held that an agreement between the parties, that the vendor should keep the horses sold, for "the vendee, at livery, was sufficient to vest the property in the buyer, without any written contract or earnest paid. The opinion of the court, upon this point, renders it unnecessary to notice the other question made in the case. The plaintiff must accordingly have judgment upon the verdict for three hundred and eleven dollars and three cents.

Judgment for the plaintiff