Smith v. Brennan

¶1This is an action of replevin for a case of goods containing 60 dozen half-hose.

¶2The property was shipped by the plaintiff from his store, in Boston, to Thomas Walsh, in Detroit. The goods were sold by the plaintiff to said Walsh on the thirteenth day of September, 1885, at New York city. They were delivered to the Merchants’ Despatch, a carrier at Boston, Massachusetts, on the fourteenth of the same month, and shipped to Walsh. Walsh died on the seventeenth of September, 1885, before the goods were delivered to him by the carrier. Brennan was appointed administrator of the estate of Walsh, and on the twenty-fourth of September found this case of hosiery in Walsh’s store, and apparently a part of the stock belonging to his estate. He took possession of them with the rest of the stock, and proceeded to inventory and appraise them as a part of the assets of the estate.

¶3*352The plaintiff demanded the goods of Brennan, who refuse# ■ to deliver them upon the demand.

¶4The sale in New York was verbal, and was made by oneFishill, in the employ of plaintiff, to one Hanley, the-agent of Walsh, and the goods were sold on credit. These-persons do not differ materially in their statements of the-transaction.

¶5Hanley went into plaintiff’s store in New York, and looked: at and .selected a case of hosiery, and made a note of his purchase, to wit, a memorcmda in a book of the number, price,, and quantity of the goods, and the terms of credit, for his own convenience.

¶6There was no memorandum made or signed by him and given to Fishill, nor was any made by Fishill and handed to-him. Hanley ordered the goods shipped by the Merchants’" Despatch, and the next day a case of like number, quality,, and quantity of hosiery was shipped from plaintiff’s store in¡ Boston to Thomas Walsh, at Detroit.

¶7The plaintiff on the trial introduced the statutes of New York in reference to verbal contracts for the sale of goods,, as follows:

“ Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless—

“ 1. A note or memorandum of such contract be made in-writing, and be subscribed by the parties to be charged thereby; or,

“ 2. Unless the buyer shall accept and receive part of such-goods, or the evidences, or some of them, of such things in? action; or,

“ 3. Unless the buyer shall, at the time, pay some part of the purchase money.”

¶8The value of the goods was admitted to be $195.

¶9The circuit judge ruled that the administrator had accepted' the goods, and had the same right to accept them that Walshi would have had if he had been living when they were delivered by the carrier, and directed a verdict for the defendant.. A return being waived, the damages of defendant were-assessed at $195, and he had judgment for that sum.

¶10*353At the time of the taking possession and acceptance of the goods he was a special administrator, appointed under the provisions of How. Stat. § 5851, and with the powers and duties prescribed by section 5S52 of the same statutes.

¶11The counsel for plaintiff take the ground that this contract is shown to be within the statute of frauds of the State of New York, where the contract was made, and that, there having been no acceptance of the goods by Walsh, the plaintiff had the right to reclaim them.

¶12It is admitted by defendant’s counsel that a delivery must be shown in order to defeat the action of the plaintiff. He argues—

1. That there was a selection and setting out of the particular and identical goods at the time of purchase, and an order given that they be shipped by the Merchants’ Despatch ; that they were, after such selection, shipped as ordered, and that this is a sufficient delivery.

2. That if it were not a good delivery, the acceptance of Brennan was sufficient.

3. That the plaintiff, having voluntarily pai’ted with his possession of the goods, cannot regain possession. Having performed the contract on his part, he cannot recall the goods; the option remained with defendant to repudiate them.

¶13The first position is not tenable.

¶14There was no selection or setting out of the identical goo Is, nor were the same goods selected forwarded to Walsh, at Detroit, but a case like the one picked out at New York was sent from the Boston store. It was nothing more or less than a contract for sale by sample. Walsh, if he had lived, would not have been bound to accept the goods when they arrived at Detroit. The oral order that the goods be shipped by the Merchants’ Despatch does not help the contract out of the statute. The carrier could not accept the goods, within the statute of frauds, under the previous ruling of this Court. It is not shown that the Merchants’ Despatch had any independent or separate authority to act for Walsh, and accept the goods when delivered to it in his behalf. And if the contract of sale was void, as it unquestionably *354was, it could furnish no authority to a third party, the carrier, to ratify it: Grimes v. Van Vechten, 20 Mich. 410.1

¶15It is also plain to us that Brennan, as special administrator, had no right, by any act of his, to accept the goods, and thus make an invalid contract a binding one upon the estate of Walsh. While an administrator or executor may be authorized, and under some circumstances compelled, to carry out the terms and provisions of a valid contract entered into by the deceased, he cannot make any contracts for him, or ratify his void transactions.

¶16We do not think that it can be said, in regard to the third proposition, that the plaintiff had parted with the possession-of the goods. The contract between the parties, before acceptance upon the part of Walsh, was no more than an offer upon the part of plaintiff to sell and deliver the goods, which might be legally revoked at any time before such acceptance. The delivery to the carrier -was not a delivery to Walsh, and consequently the goods remained, while in transit, the property of the plaintiff. He could have recalled them at any time before acceptance. Walsh dying without accepting them, and Brennan having no power to accept them for him, the goods at the time of the demand were the property of the plaintiff, and he had not consented to their going out of his possession.

¶17Upon the facts as they were stipulated, and also appeared in evidence upon the trial, the court should have directed a verdict for the plaintiff.

¶18The judgment is therefore reversed, and a .new trial granted, with costs to plaintiff.