Worthington v. Lipsitz

²⁵⁵ Briscoe, L, delivered the opinion of the Court. This suit was brought in the Court of Common Pleas of Baltimore City to recover for a carload of cider, containing seventy barrels, valued at $476.84. The plaintiff is a manufacturer and broker of ciders, vinegars and fruit products, trading under the name of the Interstate Fruit Product Company, with business offices in Baltimore City. The defendants are co-partners trading as II.

Lipsitz and Company, and engaged in business in Baltimore City. The suit is in assumpsit on an oral contract for the purchase price of the cider and the declaration contains the common counts. The case was tried upon issues joined on the pleas of “never indebted” and “never promised as alleged” and from a judgment in favor of the defendant, the plaintiff has appealed. In the course of the trial, the plaintiff reserved two exceptions, one to the ruling of the Court upon testimony, and the second, to the granting, at the conclusion of the plaintiff’s evidence, of the defendants’ prayers, marked A, B and C. There was clearly no error in the ruling of the Court upon the first exception.

The witness Nowlin testified that he saw the bill of lading at the plaintiff’s office on Tuesday the 19th of December, 1916, and that he had seen the defendants on a number of occasions, that nothing was said to indicate that they desired to repudiate the sale, and that one of the brothers made the remark, “that cider is a long time getting here. The cider season will be over by the time it gets here,” or something of that kind. He was then asked, “What was the impression they left you, under, if any? The question was objected to by the defendant and the objection was sustained.

The question was not a proper one and the impression of the witness was clearly inadmissible. It was not the opinion or impression of the witness, but the facts and circumstances and the conduct of the parties that he was called upon to give in evidence and of which he was competent to' speak. ²⁵⁶ The principal and second question presented by the record for review, is whether the rulings of the Court upon the defendants’ prayers were correct, and that is, whether there was any evidence legally sufficient, under the pleadings, of any valid contract between the plaintiff and the defendants for the purchase of the goods alleged to have been sold. There can be no great difficulty we think, in regard to the well settled principles of law by which the several questions presented by the prayers are to be determined. The controverted question in the case,'is whether there was a sufficient receipt and acceptance of the goods sold under the verbal contract, as to constitute a valid and binding sale, under the statute, and this, of course must depend upon the facts and circumstances disclosed by the record in the case.

By section 25 of Article 83 of the Code (1910, Chapter 346), it is provided that: “A contract to sell or' a sale of any goods or choses in action of the value of fifty dollars or upward shall not be enforceable by action, unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. (3) There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner' of those specific goods.” And by section 68 of the same Article it is further provided: “(1) Where goods are delivered'!© the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.” What will constitute ah acceptance and receipt so as to gratify the statute, has been frequently considered and determined by this Court, in cases under the 17th section of the ²⁵⁷ Statute of Frauds, where the words of the statute are in substance the same. (29 Car. II, Cap. 3, sec. 17.) In Belt v. Marriott, 9 Gill, 335 , it is said, 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