Mitchell v. Le Clair

• Citation: 165 Mass. 308,43 N.E. 117
• Parties: MITCHELL et al. v. LE CLAIR.
• Decision Date: 28 February 1896
• Court: United States State Supreme Judicial Court of Massachusetts

165 Mass. 308

43 N.E. 117

MITCHELL et al. v. LE CLAIR.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1896

COUNSEL

D.D Corcoran, for plaintiffs.

Geo. H Towle, for defendant.

KNOWLTON J.

The principal question in this case is whether there was a sufficient delivery of the butter to pass the title as between the parties. There is no dispute that there was a good contract of sale, and no question arises under the statute of frauds. The defendant accepted by telegram the plaintiffs' offer to sell him 60 tubs of butter of a specified quality at 27 cents per pound. The plaintiffs had in their storehouse a large quantity of butter. Upon the receipt of the defendant's telegram accepting their offer, they were impliedly authorized, as the defendant's agents, to set apart and appropriate to him the goods called for by the contract. This they immediately did, weighing the butter, setting it apart, and marking each tub for the purpose of designating it as the defendant's property. They then at once sent him a bill of all of it, marked. "Cash on demand." This completed the sale, and passed the title. Morse v. Sherman, 106 Mass. 430; Marble v. Moore, 102 Mass. 443; Arnold v Delano, 4 Cush. 33-38; Ropes v. Lane, 9 Allen, 502-510; Bank v. Bangs, 102 Mass. 291-295; Safford v. McDonough, 120 Mass. 290; Gilmour v. Supple, 11 Moore, P.C. 551-556; Tarling v. Baxter, 6 Barn. & C. 360; Benj. Sales (6th Am.Ed.) 294-298, and cases cited in the note.

If the contract is not in such form as to be binding under the statute of frauds, such an appropriation does not constitute an acceptance under that statute, nor does it change the possession, and thereby deprive the vendor of his lien for the price. Safford v. McDonough, 120 Mass. 290. But if the vendee in such a case afterwards refuses to take the goods, and pay for them, the vendor may recover the price, if he keeps them in readiness for delivery to the purchaser. Under a contract of sale, when the goods have been so appropriated and set apart, the vendor has done that which by the terms of the agreement makes the whole consideration payable; and so long as he remains ready to do whatever else is to be done to give the vendee the benefit of his purchase, he is entitled to receive the agreed price without deduction on account of his retention of his lien upon the property. White v. Solomon (Mass.) 42 N.E. 104; Morse v. Sherman, 106 Mass. 430; Putnam v. Glidden, 159 Mass. 47, 34 N.E. 81.

There was sufficient evidence to warrant the judge in finding that the butter answered the requirements of the contract. The plaintiffs appropriated it to the defendant as butter of the quality called for. Their conduct then and afterwards was equivalent to a declaration that it conformed to the agreement of the parties. Afterwards shipments were made from time to time of a part of it,...