In Marsh v. Rouse, 44 N.Y. 643, 647, the court said that to take the case out of the statute of frauds "the acts (not words) of the parties must have been of such a character as to unequivocally place the property within the power and under the exclusive dominion of the buyer."Summary of this case from Lumber Co. v. Builders' Supply Co.
Argued May 5th
Decided September 13th, 1871
Stephen D. Dillaye, for the appellants. George N. Kennedy, for the respondents.
The absence of a note or memorandum in writing, subscribed by the plaintiffs and defendants, of their contract of the 13th of January, 1864, for the sale and purchase of the 200 barrels of highwines, or the acceptance and receipt of some portion of them by the defendants, or the payment by them of some portion of the purchase-money, rendered the contract void. The contract between the plaintiffs and Wood for the purchase of the 100 barrels lacked the same elements of vitality, and was, therefore, worthless when it was made; and unless the defendants' subsequent directions to Wood to ship the 100 barrels of wines, contracted by him to the plaintiffs, to the defendants' consignee in New York, was an acceptance and receipt by the defendants of the 100 barrels, in part performance of the oral contract of the 13th January, between the plaintiffs and defendants, for the sale and purchase of the 200 barrels of wines, the plaintiffs are remediless. The directions by the defendants to Wood to ship the 100 barrels to their consignee, did not oblige him to waive his lien upon the property for the unpaid purchase-price and ship the wines, nor does it appear that he complied with the directions to ship. On the contrary, so far as the findings of fact show, the goods remained under his control several days after the directions to ship, and, for ought that appears, until after they were sold at auction in pursuance of the plaintiffs' notice. What would have been the effect of shipping them as directed by the defendants, is not now necessary to be considered. It is enough that there was no vesting of the possession of those wines in the defendants, "as the absolute owners, discharged of all lien for the price" on the part of Wood. To take the case out of the statute, "the acts of the parties must have been of such a character as to unequivocally place the property within the power and under the exclusive dominion of the buyer." ( Shindler v. Houston, 1 N.Y., 261, 269, 270; Rodgers and others v. Phillips Oakley, 40 N.Y., 519.) Such not being the case, it is unnecessary to examine the other grounds of defence. The judgment appealed from should be affirmed.
All for affirmance.
Judgment affirmed, with costs.