A. C. Dauphiny & Co. v. Red Poll Creamery Co.

Appeal from judgment, with bill of exceptions. Appeal taken within sixty days after rendition of judgment. Action brought to recover the price of one hundred and eighty cords of wood at one dollar and seventy-five cents per cord. Defense, that there was no contract in writing and no receipt and acceptance of the wood.

*549 It is not claimed that there was any contract in writing. The court below found that the wood was delivered upon the lands of the respondent, and near its creamery, but that no part of it was accepted and received, within the meaning of section 1739 of the Civil Code. In such case, the acceptance is matter for the jury to determine; and the finding must stand unless the uncontroverted facts are sufficient in law to constitute an acceptance.

The cases, under the clause of the statute of frauds which our code section has reproduced, hold that, in order to supply the place of a writing, acceptance and receipt are necessary to show the complete consent of the vendee to the existence of the contract. Acceptance and receipt are both necessary. “The acceptance must be clear and unequivocal.” (Benjamin on Sales, sec. 144, where cases are collected.) In this case, the…