Patterson & Holden v. Sargeant, Osgood & Rounds' Co.

• Decision Date: 19 August 1910
• Citation: 83 Vt. 516,77 A. 338
• Parties: PATTERSON & HOLDEN v. SARGEANT, OSGOOD & ROUNDS' CO.
• Court: Vermont Supreme Court

77 A. 338

83 Vt. 516

PATTERSON & HOLDEN

v. SARGEANT, OSGOOD & ROUNDS' CO.

Supreme Court of Vermont.

Aug. 19, 1910.

Exceptions from Orange County Court; E. L. Waterman, Judge.

Action by Patterson & Holden against the Sargeant. Osgood & Roundy Company. Judgment for plaintiff, and defendant brings exceptions. Affirmed.

Argued before ROWELL. C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Darling & Watson, for plaintiff.

March M. Wilson, for defendant.

MUNSON, J. The suit is brought to recover the price of goods sold; and the question is whether there was an acceptance sufficient to satisfy the statute of frauds. The property consisted of a gasoline engine, a water wheel, a steel grinder, a corn cracker, and certain shafting, pulleys, sprockets, and other iron ware, all of which had been used in a gristmill burned two years before, and most of which, exclusive of the gasoline engine, was in the basement of the mill, where it had remained undisturbed since the fire. The main value of the property was in the engine and wheel. The wheel was understood to be damaged, but the extent of the damage was not known. The defendant relied on the statement of a third person by whom the wheel was last used. It could not be fully examined as it stood, but was to be taken by the defendant where it was. The defendant moved all the property except the wheel to a bank on the premises about 75 feet distant, whence it could be conveniently loaded for carrying away. It could not be conveniently loaded without doing this. When the corn cracker was moved, it was treated as junk, and broken into pieces with sledges. In preparing to remove the wheel, defendant unnecessarily broke with sledges two or three bolts of small value, but this was apparently done in the belief that it was necessary to a removal of the wheel with reasonable convenience. When the wheel was taken from its case, it was found to be damaged more than was expected, and nothing was done after this. It was not necessary to remove the machinery thus in order to examine the wheel and ascertain the condition of the buckets. The wheel could have been reached for this purpose by removing a few partially burned timbers and some rods. Defendant did all that was done towards the removal of the property with an expectation that the wheel would be found as indicated by the statement referred to, and intending to take the property if the wheel was found as expected.

Laying aside all questions regarding the effect of the preliminary moving of some of the property and the unnecessary breaking of bolts in getting at the wheel, we take up the question presented by the breaking in pieces of the corn cracker. To satisfy the statute the purchaser must accept and receive part of the goods; and the defendants' claim is based upon the distinction between a receipt of the goods and an acceptance of them. It is well settled that the term "acceptance" covers more than "receipt," and that a receipt without an acceptance is not sufficient. Notes, 49 Am. Dec. 327; 96 Am. St. Rep. 216; Caulkins v. Hellman, 47 N. Y. 449. 7 Am. Rep. 461....