Ham v. Orden

It is well said, in Shindler v. Houston (1 N. Y., 261), that “ the acts of part payment, of delivery and acceptance, mentioned in the statute, are something over and beyond the agreement, of which they are a part performance, and which they assume as already existing.” And again, in the same case, “ there must be an actual acceptance by the latter [the vendee], with the intent of taking possession as owner.” Again, in Caulkins v. Hellman (47 N. Y., 449): “Even the receipt of the goods without an acceptance is not sufficient. ' Some act or conduct on the part of the vendee, or his authorized agent, manifesting an intention to accept the goods as a performance of the contract, and to appropriate them, is required.”

What was there in the present case ? Only a verbal agreement.The plaintiff claims that the defendant accepted the furniture, because, in the presence of the furniture, he agreed to buy it, and then, that he received it the next day by its delivery to Watson, *711alleged to be his agent for that purpose. But the mere words of the contract for sale are not acceptance. Acceptance requires “ that the vendee should also act [not talk], and that his act should be of such a nature as to indicate that he received and accepted the goods delivered as his property.” (Rodgers v. Phillips, 40 N. Y., 519, 524.) In the present ease the defendant did no act whatever, except to make the contract. Some of the furniture was not even present; some was broken; some was in the cemetery. Even as to the contract actually made, if the matter of fact were before us for review, a fair understanding of the testimony, perhaps, would be, that he was not bound to the price of $125, if the furniture should prove to be in bad condition. But, however that may be, whatever the mere verbal agreement was, the defendant did no act which can be called an acceptance of the property. It may be that he agreed to accept the furniture. But, as a matter of fact, he did not accept anything. (Brabin v. Hyde, 32 N. Y., 519; Brand v. Focht, 3 Keyes, 409; Good v. Curtiss, 31 How., 4.)

It is said that the acceptance and the receiving may be at different times. (Cross v. O'Donnell, 44 N. Y., 661.) Even if this be correct, it cannot be said that, in the present case, there was any acceptance of the goods by the act of Watson. Assuming that the goods were to be delivered to the defendant at the plaintiff’s house, yet, as the contract was verbal, it was necessary that he should manifest his acceptance by some act. So that the delivery of the goods by the plaintiff to Watson, that they might be carried to the defendant’s house, was not an acceptance by him. And, indeed, the plaintiff does not argue that the delivery to Watson was an acceptance, but that the acceptance had preceded. No such acceptance, as is before said, had in fact taken place, and Watson had no authority from the defendant to accept. The plaintiff should have been nonsuited.

The judgment must be reversecf, with costs.

Present—Learned, P. J., Boardman and James, JJ.

Judgments of County Court and justice reversed, with costs.