Bullock v. Tschergi

• Decision Date: 01 January 1882
• Citation: 13 F. 345
• Parties: BULLOCK & CO. v. TSCHERGI & SCHWINDE.
• Court: United States Circuit Court, District of Iowa

13 F. 345

BULLOCK & CO. v. TSCHERGI & SCHWINDE.

United States Circuit Court, D. Iowa.

1882

LOVE D. J.

The question presented upon the facts of this case is whether or not the delivery of goods under an oral contract of sale to a common carrier (not designated by the purchaser) in the usual course of transportation is sufficient, under the Iowa statute of frauds, to bind the contract.

The language of the Iowa statute, it will be seen differs very materially from that of England, and may of the states of the Union. The Iowa statute of frauds provides that it shall embrace, among other contracts, 'those in relation to the sale of personal property, when no part of the property is delivered, and no part of the price paid.'

The language of the English statute is somewhat different. It provides--

'That no contract for the sale of any goods, wares, and merchandise, for the price of 10 pounds sterling or upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.'

In many of the state statutes, and among them those of New York Massachusetts, and Georgia, the same words, 'accepted and received,' are used, and these words have been expounded by many English and American decisions. Unquestionably wherever these words have been used, it has been held that in order to dispense with the necessity of writing, the goods must be both 'accepted an received,' and that one or the other is not sufficient. It is well settled in England New York, Massachusetts, Georgia, and some other states, that the mere delivery of the goods is not sufficient under the statute, because the words 'delivery' and 'received' are 'correlative terms,' and therefore that the goods must not only be 'delivered- ' or 'received' but also accepted, in order to comply with the terms of the statute. But delivered and accepted are not, according to these decisions, equivalent terms. Goods may be delivered and not accepted, but, on the contrary, rejected, as not corresponding to samples, or as otherwise contrary to the conditions of the contract. Hence it has been held, in England and in the states referred to, that delivery to a common carrier is not sufficient under their statutes of frauds, because the carrier is authorized to 'receive' but not to accept goods for the vendee, while the statute requires that they shall be both received or delivered and accepted, in order to bind the bargain without writing. But the decisions in England and the states, referred to at the same time, hold that a delivery to a common carrier, though not designated by the purchasers, is a good and perfect delivery to the latter; that the carrier is quoad hoc his agent; that the possession is after such delivery in the purchaser, and the goods at his risk; that the lien of the vendor for the price is upon the delivery to the carrier lost, by reason of the fact that the possession has been transferred from him to the purchaser; and that the vendor's only remaining right to the goods after such delivery is that of stoppage in transitu.

But these decision further hold that the common carrier is the agent of the vendee for the purpose of delivery only, and not of acceptance, etc. The common carrier cannot accept for the vendee, because acceptance implies assent that the goods are in accordance with the contract. Acceptance implies a mental act. It is by such mental act that the purchaser finally gives assent to the performance of the contract by the vendor, as being in full compliance with the terms of the contract of sale. Such was the exposition of the words 'accepted and actually received' by the courts of England and the American states. But we see that these words are entirely omitted in the Iowa statute, and the word 'delivery' alone used, and that the word 'delivery,' according to the adjudication, had been held to be equivalent to 'received.' There is no word in the Iowa statute equivalent to the word 'accepted.' Can we suppose that the codifiers were ignorant of the previous adjudications as to the meaning of the words 'accepted and received?' Can we assume that they omitted the word 'accepted,' or any equivalent term, from the statute unintentionally or by mere accident? Such assumptions would be violent and untenable. We must conclude that the word 'accepted' was omitted intentionally, and that the purpose of the legislators was that delivery alone, without 'acceptance,' should be sufficient to dispense with the necessity of writing. Nor was this change of phraseology without good and solid reason in the mind of the framers of the Iowa statute. The delivery of the possession of goods is an open, visible, tangible act. It is a physical fact, manifesting the intention of the parties. A sale by words only would open the door to fraud and false swearing. A sale with delivery removes this danger, as far as it can be removed, and to the extent that the statute of frauds intended to remove it. Delivery of possession, therefore, accomplishes the very purpose of the statute, and the mere act of acceptance could add little or nothing to that purpose. Hence was the word 'accepted' omitted from the Iowa statute.

Now, delivery to a common carrier is not only an open and visible act, calculated to satisfy the policy of the statute, but is ordinarily susceptible of more satisfactory proof than a delivery direct to the vendee, since, in many cases, the vendee would be the only witness of delivery to him, while delivery to a carrier could always be proved by many disinterested witnesses.

Again: The Iowa statute is, by its express terms, a statute of evidence. 'No evidence of the contracts enumerated is competent without writing, unless the goods be delivered,' etc. In this it differs somewhat from the terms of the English statute, which provides that no action shall be maintained upon any of the contracts named which shall not be in writing, etc. The purpose of the Iowa statute was to prescribe a mode of proof which would, as far as possible, avoid the danger of fraud and perjury. Its framers must have known that it had been settled that delivery to a common carrier is a good and perfect delivery, and we may assume that they saw clearly that such a delivery would be more susceptible of certain proof as evidence of the bargain, and less exposed to the danger of perjury and fraud, than any direct delivery to the purchaser could possible be. Proof of a direct delivery by the vendor to the vendee might rest upon their own testimony; whereas a delivery to a common carrier might be shown by the testimony of the intervening agents, and by the very circumstances of the transaction. Hence a delivery to a common carrier would more effectually accomplish the purpose of the statute than a direct and immediate delivery to the vendee.

But again, let us consider the effect in commercial transactions of a rule that nothing short of acceptance by the vendee is sufficient to bind an oral contract for the sale of goods. The distant merchant visits the city and makes his purchases orally. It would be highly inconvenient to require that all such purchasing contracts should be reduced to writing. Now, if nothing short of the acceptance of the goods by the purchasing merchant when they reach him, would make the contract valid and binding under the statute of frauds, how could the selling merchant with any safety whatever, venture to forward the goods? The goods might be in strict accordance with samples, if sold by sample, or with the terms of the oral contract, if sold otherwise; and yet the purchasing merchant would be at perfect liberty to reject them without incurring the least liability. The purchasing merchant might simply say: 'True, the goods are all right,-- they are in strict accordance with the samples and the contract,-- but there was no writing, and I have not yet accepted them, therefore I will simply thrown them on your hands. ' But suppose the vendor may bind the bargain by delivering the goods to the common carrier in the regular course of business, he...