Kellogg v. Witherhead

This was a contract for sale, not for work and labor. The plaintiffs were not to make the hams; they were to smoke them. Before the articles were put into the smoke-house, they were hams unsmoked; when taken away, they were' hams *527smoked. The case of Bates v. Coster, 3 N. Y. Sup. 580, clearly states the doctrine, and is analogous to the present. It is unnecessary to repeat what is there said so well, or to cite the cases there collected.

The hams were not accepted and received. Mere words are not sufficient. Shindler v. Houston, 1 N. Y. 261; Caulkins v. Hellman, 47 id. 449. The goods were in plaintiffs’ store, in their actual possession, and none of them had ever been accepted and received by the defendant. The property in them remained in the plaintiffs,. and the loss must fall on them.

The judgment must be reversed and a new trial ordered, costs to abide the event. °

Judgment reversed and new trial ordered.