Jarrell v. Young, Smyth, Field Co.

• Citation: 66 A. 50,105 Md. 280
• Parties: JARRELL v. YOUNG, SMYTH, FIELD CO.
• Decision Date: 01 March 1907
• Court: Court of Appeals of Maryland

66 A. 50

105 Md. 280

JARRELL v. YOUNG, SMYTH, FIELD CO.

Court of Appeals of Maryland

March 1, 1907

Appeal from Circuit Court, Kent County; James A. Pearce, Austin L Crothers, and Wm. H. Adkins, Judges.

Action by the Young, Smyth, Field Company against Clifton L Jarrell. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued before BRISCOE, BOYD, BURKE, and SCHMUCKER, JJ.

Hope H Barroll and James P. Gorter, for appellant.

Lewin W. Wickes, for appellee.

BOYD J.

The appellant, who was a merchant at Chestertown, gave the appellee's agent a verbal order for some articles of merchandise, which the appellee claims were to be shipped to him on March 10, 1906; while the appellant contends that they were not to be shipped until the 15th of that month, and that he could, in the meantime, countermand the order. No payment was made on them by the appellant, and, there being no memorandum in writing signed by him, the real question at the trial below was whether there was such acceptance and receipt of them as complied with the requirements of the seventeenth section of the statute of frauds. A verdict was rendered in favor of the plaintiff (appellee), and this appeal is from the judgment entered thereon.

A prayer was offered at the close of the plaintiff's case seeking to take the case from the jury; but, when that was rejected, the defendant called a witness and proceeded with his case. The exception taken to the rejection of that prayer was thereby waived, and is not before us for review. Barabasz v. Kabat, 91 Md. 53, 46 A. 337, and other cases since decided.

The defendant's attorney called the defendant, and asked him the following question: "Did you at any time ever intend to receive and accept as owner these goods after you were notified of their receipt at the railroad?" The court sustained an objection to that question, and its ruling is presented by the second bill of exceptions. The third bill of exceptions embraces the rulings on the prayers. Exceptions were taken to the court's action in granting the plaintiff's second prayer, and rejecting the defendant's fifth, and modifying his first, offered at the end of the case. It will be convenient to first consider the rulings on the prayers.

The appellant not having done anything from which it can be claimed that the seventeenth section of the statute of frauds had in other respects been complied with, the question was whether he did "accept part of the goods so sold and actually receive the same," to use the language of the statute. The goods were shipped to the appellant at Chestertown from Philadelphia, on the 10th of March, and were received at the railroad station on the 12th of that month. A carter who hauled for the appellant went to the station to get them, but the appellant sent word to him not to take them; that he did not want them. The appellant paid the freight both ways, and reshipped the goods to the appellee, and on that day (March 16th) signed a shipping order and wrote a letter to the appellee. The letter stated he was returning the goods, and asked the appellee to take them back, as he had disposed of his stock and mercantile business; that "the goods were not opened, and go back as they were shipped, freight paid." The appellee replied on April 10th, but declined to accept the goods, as they had reason to believe he was still in business. On April 20th they were received by the railroad company from Easton, Md.; they having been shipped there by mistake, and then forwarded to Chestertown, where they still remain at the depot. The carter paid the railroad company the freight; but, when the appellant notified him not to take the goods, the company refunded the amount. There were some expressions in the letters of the appellant which might have led the jury to believe that he had accepted the goods, although they were not instructed as to what was a sufficient acceptance to comply with the statute of frauds.

It was important for them to be so instructed, in order that they could understand what was necessary to show an acceptance within the meaning of the law. The defendant's first prayer, as offered, and the court's instruction, in lieu of it, will be considered before referring to the plaintiff's prayer which was granted, as the theory of the appellant is thereby distinctly presented. After asking the court to say there was no sufficient memorandum in writing to evidence the sale of goods sued for, the defendant's prayer proceeded: "And, in order for the plaintiff to recover in this cause, it is necessary for the plaintiff to establish by a preponderance of evidence, to the satisfaction of the jury, that the defendant intended to receive the goods sued for, and to accept the same as owner. " The court's instruction used the language of that prayer to and including the words "preponderance of evidence," and in place of the rest of it substituted the words, " that the defendant received and accepted said goods." We will italicise the parts of the two which differ. Under the circumstances of the case, which we have sufficiently stated, it would seem to be clear that the instruction of the court was not as specific, as to acceptance and receipt, as the defendant was entitled to. The fact that the defendant did pay the freight from and to Philadelphia, and did give the shipping order for the goods to be returned, together with other facts we have mentioned, might have led the jury to believe he had accepted and received the goods, and they could not be presumed to know what sort of an acceptance or receipt was required to bind the defendant. As early as Belt v. Marriott, 9 Gill, 335, our predecessors quoted with approval from 2 Starkie on Evidence, 490, that: "In order to satisfy the statute, there must be a delivery of the goods with intent to vest the right of possession in the vendee, and there must be an actual acceptance by the latter, with intent to take possession as owner." That has been since followed a number of times in this court. See Jones v. Mechanics' Bank, 29 Md. 293, 96 Am. Dec. 533; Hewes & Co. v. Jordan, 39 Md. 479, 17 Am. Rep. 578; Corbett v. Wolford, 84 Md. 429, 35 A. 1088; Cooney & Co. v. Hax & Co., 92 Md. 136, 48 A. 58; Richardson v. Smith, 101 Md. 19, 60 A. 612, 70 L. R. A. 321, 109 Am. St. Rep. 552. Judge Miller, in Jones v. Mechanics' Bank, referred to the necessity of discrimination "between a sale at common law, which is consummated by delivery, and a sale as effected by this statute," and referred to the rule quoted in 9 Gill, 335, from Starkie on Evidence, as being "very accurately stated." In Hewes & Co. v. Jordan, supra, Judge Alvey discussed the question at length. He said: "That the acceptance and actual receipt of the goods sold, or some part of them, by the vendee, to gratify the statute, must be intended by the parties to effect a final and complete change of property in the goods so actually received, under the contract, would seem to be clear." He quoted with approval from Blackburn on Sales that: "It is immaterial whether his (buyer's) refusal to take the goods be reasonable or not. If he refuses the goods, assigning grounds false or frivolous, or assigning no reasons at all, it is still clear that he does not accept the goods, and the question is not whether he ought to accept, but whether he has accepted, them. The question of acceptance or not is a question as to what was the intention of the buyer, as signified by his outward acts." The third prayer offered by the defendant in that case, which...