James P. Cooney & Co. v. George A. Hax & Co.

Briscoe, J., delivered the opinion of the Court: This is an action of assumpsit brought in the Superior Court of Baltimore City by the appellants against the appellees to recover the contract price of ten car loads of potatoes, alleged to have been sold by the plaintiffs to the defendants. The declaration contains eight counts, the first six are the common money counts, and the other two are special counts stating a sale to the defendants of ten car loads of potatoes, and claiming the difference between the original contract price and the amount the plaintiffs received from a subsequent sale thereof. To the declaration the defendants pleaded, first, that they never were indebted as alleged; second, that they did not promise as alléged. At the trial of the case the appellants reserved eleven bills of exceptions, ten of which relate to the admissibility of evidence.

The eleventh exception was to the granting of the defendants’ prayer at the end of the plaintiffs’ case, which was to the effect that there was no legally sufficient evidence under the pleadings in the case of any valid contract between the plaintiffs and the defendants for the purchase of the potatoes mentioned in the evidence and the verdict must be for the defendants. The defense relied upon in this case, and the question presented by the prayer, arises under the seventeenth section of the Statute of Frauds, (29 Car. II., ch. 3.) This statute provides that no contract for the sale of any goods, wares and merchandise, for the price of ten pounds 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 some ¹³⁶ thing in earnest to bind the bargain or in part payment, or that some note or memorandum in writing of the bargain be made and signed by the parties to be charged by such a contract or their agent, thereunto lawfully authorized. Now, it is admitted that there was no written contract of sale, nor any note or memorandum in writing signed by the defendants, nor any acknowledgement in writing of the dealings between the parties or their lawfully authorized agents.

If there was a contract at all, it was a verbal one. The plaintiffs testified that the potatoes were sold to one of the defendants, but there was no evidence to show that either of the defendants accepted or received the potatoes. On the contrary, the proof is that the defendants refused to accept or to receive the potatoes, and that no one had authority to accept or receive them on their behalf. It is distinctly held in Belt v. Marriott, 9 Gill, 335, that in order to satisfy the Statute of Frauds 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.

Hewes v. Jordan, 39 Md. 479 ; Jones v. Mechanics' Bank, 29 Md. 293 . There being, then, no legally sufficient evidence of a valid contract for the