#### John Farwell *et al. versus*Alpheus Smith.

Where the defendant agreed with one S. to take goods of him, to be manufactured for him by the plaintiffs, and goods were sent by the plaintiffs to the defendant, who credited them to S. and afterward accounted for them in a settlement with S., and the plaintiffs, having seasonable knowledge that the goods were thus credited, gave no notice to the defendant, until after such settlement, that they had not been delivered on account of S., but of the defendant himself, it was *held,*that the plaintiffs could not maintain an action against the defendant for goods sold and delivered.

Assumpsit by the plaintiffs, manufacturers of scythes in the town of Westford, against the defendant, a trader in the town of Tewksbury, to recover the price of two dozen scythes, as goods sold and delivered.

*85At the trial before *Shaw*C. J. the plaintiffs called a witness, one Richardson, who testified that he was an agent of the plaintiffs ; that in the spring of 1827 he called at the defendant’s store in Tewksbury to inquire if he should want any of the plaintiffs’ scythes that season; that the defendant told him he should, and that he would take a dozen of common and a dozen of double steel.

One Parkhurst, called by the defendant, testified that he was a clerk in the defendant’s employment; that he was present when Richardson called at the defendant’s store ; that the defendant, in answer to the question whether he should want scythes that season, told Richardson he should want scythes, but not from the plaintiffs, as he was going to have some ot Owen Spaulding.

Richardson again testified that the defendant did not tell him he should not want scythes of him, and that he had no recollection of hearing the name of Spaulding mentioned ; that he packed up two dozen scythes at the plaintiffs’ manufactory, and delivered them to one Simons, another agent of the plaintiffs, to carry to the defendant’s store.

Simons testified that he carried the scythes and left them at the defendant’s store ; that the defendant was not there, and he delivered them to Parkhurst and told him from whom he had brought them. On cross-examination, he stated that Parkhurst asked him if they came on Owen Spaulding’s account, and that he answered that he did not know.

Parkhurst further stated, that he received the scythes in two bundles, which he afterwards found to contain twelve of common and nine of double §teel; that he asked Simons at the time, if they were delivered on account of Spaulding, and Simons said he did not know; that he, the witness, credited them to Spaulding on the same day, but he did not know whether he told Simons that he should credit them to Spaulding ; that he so credited them, in consequence of the conversation that he had heard between the defendant and Richardson, and between the defendant and Spaulding.

Spaulding deposed that he agreed with the plaintiffs to let the defendant have scythes on his account; that they after-wards informed him that they had so done ; that he credited *86the plaintiffs and debited the defendant accordingly ; and that he afterwards settled his account with the defendant and had an allowance for the scythes.

One Warren testified, that afterward, in 1829, Farwell, one of the plaintiffs, told the defendant that he knew at the time when the scythes were delivered, that they were credited by tire defendant to Spaulding. This was when Farwell came for his pay, and the defendant then said that he had agreed with Spaulding for the scythes, and asked Farwell why he charged them to him rather than Spaulding, and Farwell said, because he did not know whether he owed Spaulding or not The defendant asked him, why, if he did not choose to take Spaulding as paymaster, he did not let the defendant know it in season.

One Randall testified that he lived with Spaulding in the summer of 1827 ; that Farwell was at Spaulding’s shop and told him that some scythes had been left at the defendant’s on his (Spaulding’s) account.

There was much contradictory evidence as to the principal points.

The jury were instructed, that this action being assumpsit for the sale and delivery of goods, in order to maintain it the plaintiffs must show that there was a contract of sale and a delivery in pursuance of such contract. Both must concur. Where there is an unconditional delivery of goods, which the vender has to sell, as in case of a trader or manufacturer, to another, who accepts them unconditionally and applies them to his own use, the fact of a contract of sale is implied by law. But a mere contract of sale, without a delivery of the goods, (which implies an acceptance by the vendee,) is not sufficient to maintain an action for goods sold and delivered, though it may found an action for damages for not accepting the goods. If however there was a clear and unequivocal contract made by the defendant with the plaintiffs, through the agency of Richardson, to purchase the scythes, and after-wards the plaintiffs sent them pursuant to this agreement, and the defendant or his agent, Parkhurst, did not give distinct notice that he did not receive them on account of the plaintiffs, but of another person, the law will presume that the *87scythes were received as of the plaintiffs; arid this will const! • tute a delivery, which completed the sale and rendered the defendant liable. The jury therefore would consider the evidence in regard to such alleged contract, and if such contract was satisfactorily proved, it would strengthen the presumption, that the goods were delivered and received on the plaintiffs’ account. But although there may have been a contract by the defendant to purchase two dozen scythes of the plaintiffs, yet if he did not in fact, or by reasonable presumption, receive these scythes pursuant to that bargain, the sale was not complete. If Simons, the plaintiff’s agent, had left it doubtful at the time of his delivering the scythes at the defendant’s store, whether they came on the plaintiffs’ or on Spaulding’s account, the jury would consider whether in fact the scythes were *received*by Parkhurst, the defendant’s agent, on the plaintiffs’ account or on Spaulding’s. If the testimony of Parkhurst and the book of entries were believed, the scythes were received on Spaulding’s account. If in fact they were so received and were credited to Spaulding, and this was seasonably known to the plaintiffs, if they did not give seasonable notice to the defendant that they did not intend to deliver them on Spaulding’s account but on his (the defendant’s) account, so that he might have returned them, then *there*was no delivery pursuant to the alleged contract, and the sale was not complete.

A verdict was returned for the defendant, which the plaintiffs moved to set aside on account of misdirections in point of law.

*Oct. 22d.*

The case was argued by *H. H. Fuller*and *J. R. Adams*for the plaintiffs,

and by *Hoar*for the defendant. On the question whether the plaintiffs were bound to give the defendant notice that the scythes had been delivered on his own account and not on the credit of Spaulding, *Fuller*cited *Cooke*v. Ludlow, 5 Bos. & Pul. 119 ; *Fishery. Samuda,*1 Campb. 190 ; *Groning v. Mendham,*1 Stark. R. 257 ; *Hopkins*v. *Appleby,*ibid. 477 ; *Milner*v. *Tucker,*1 Car. & Payne, 15 ; *Grimaldi*v. *While,*4 Esp. R. 95.

*April term,*1832, *at Concord*

*Per*Curiam.

The question in this case lies within a narrow compass. Several positions taken by the plaintiffs’ counsel *88are very correct; the only question is, whether they apply to the case ; as, that the defendant was bound by the act of his agent Parkhurst, to the same extent, as if he had done the same personally ; that where a fact, which one party does know, or is bound to know, or which is equally known to both parties, becomes material, no notice thereof need be given by the other. So there is no doubt of the position, that a delivery to a common carrier, pursuant to an order for goods, is a sufficient delivery to the vendee to complete a contract of sale. But here the carrier was the plaintiffs’ own agent, and not a *common*carrier, and the principle has no application.

It appears by the report, that there was evidence tending to show that the defendant had agreed to purchase scythes of the plaintiffs, to be delivered at a future time, and also that he had agreed with one Spaulding to have scythes of him, to be manufactured by the plaintiffs for Spaulding ; that when the scythes were brought, the messenger was asked by the de fendant’s clerk, whether they were ■ delivered on Spaulding’s account or the plaintiffs’, and he said he did not know; upon which they were credited to Spaulding, and accounted for in settlement with him. There was also evidence tending to show, that the fact of their having been so received and credited was early known to one of the plaintiffs. This evidence was left to the jury, with an instruction, that if the scythes were in fact received by the defendant on Spaulding’s account, and credited to him, and this was seasonably known to the plaintiffs, if they did not give seasonable notice to the defendant, that they did not intend to deliver them on Spaulding’s account, but his own (Smith’s) account, then there was no delivery, pursuant to the alleged contract, and the sale was not complete. The Court are all of opinion, that this instruction was correct. The action was for goods sold and delivered. The sale was not complete without delivery, and delivery implies an acceptance. The evidence, which the report finds to have been conflicting and contradictory, left it open for the jury to find, that the fact of leaving the goods at the defendant’s store, which was relied upon as proof of delivery and acceptance, was equivocal, and the parties respectively were under a mistake, the one intending to deliver them under one *89contract, and the other to accept them under another. In this state of things, it appears to the Court to fall clearly within the rule, as well of equity as of law, that where a fact affecting the rights of parties is known to the one and not known to the other, it is the duty of him to whom it is known, to give notice thereof to the other. *Cooke*v. Ludlow, 5 Bos. & Pul. 119. Here was evidence, if believed by the jury, that the defendant, under a belief that these goods were delivered by the plaintiffs on the credit of Spaulding, had accounted with and paid Spaulding for them, before any notice was given or claim-made by the plaintiffs. If the plaintiffs, knowing that they were thus accepted and credited, chose to lie by, and leave the defendant thus in ignorance, until it was too late for him to correct the mistake into which he was permitted to fall, they in effect affirmed the delivery as he had received and understood it and acted upon it, and they cannot afterwards be permitted to say that the defendant is responsible for a mistake, which seasonable notice from them would have enabled him to correct.

*Judgment on the verdict.*