
    Olin B. Greene, Respondent, v. Michael Seitz, Appellant.
    (Supreme Court, Appellate Term,
    October, 1899.)
    Sale — Delivery and acceptance under the Statute of Frauds.
    Where a dynamo, to propel a merry-go-round, is delivered as ordered but before it can be set up, and there is an independent agreement for setting it up and the purchaser retains it for several weeks with an idea of doing so and then rejects it, a jury is justified in finding that there has been a delivery and acceptance by the purchaser sufficient to take the contract of sale out of the statute of frauds, although there has been no memorandum or payment made.
    Greene v. Seitz, 28 Mise. Rep. 790, affirmed.
    Appeal from a determination of the General Term of the City Court of New York, affirming a judgment of the Trial Term, rendered on the verdict of a jury in favor of the plaintiff.
    John A. Ramping, for appellant.
    Joab H. Banton, for respondent.
   Levehtritt, J.

The complaint is for goods sold and delivered and recovery is sought on an oral agreement for the sum of $300, the stipulated value of an electric dynamo furnished by the plaintiff’s assignor to the defendant. The defenses pleaded by the answer and litigated on the trial were breach of warranty and the Statute of Frauds.

The first defense resolved itself into a question whether the dynamo was of the- capacity and power represented in the contract of sale. Each party introduced expert evidence on the subject; a clearly defined question of fact was thus raised which the jury, on a proper submission of the issue, determined in favor of the plaintiff.

To meet the second, defense the plaintiff endeavored to establish acceptance and receipt of the dynamo by the defendant, there being admittedly no note or memorandum of the contract subscribed by the defendant and no payment at the time of any part of the purchase money.

The appellant urges that there is no evidence of his acceptance-of the dynamo. We are of the opinion, however, that the record refutes this contention and that there was sufficient evidence to-carry the question of acceptance to the jury.

One of the plaintiff’s assignors, with whom the oral contract for the delivery of the dynamo was made, testified that it was to. be used to drive a merry-go-round at the defendant’s resort at North Beach; that an independent arrangement was made with him for the setting up of the machine and that compensation was to be paid therefor over and above the purchase price of the dynamo; that it was delivered about June first, conformably to the-defendant’s instruction; that no complaint was ever made; that he-was never notified, either orally or in writing, of any intention to return or reject the machine; that he never heard that the defendant did not want it; that after delivery he asked the defendant on numerous occasions for directions to set the dynamo and was ordered to defer setting it until the end of July when, on the completion of the merry-go-round, he was to receive notice to proceed;, that the dynamo remained on the premises of the defendant, hut that no such notification was ever given him. These facts are-substantially uncontradicted and they are supplemented by the-admission of the defendant that the machine was not sent until he-wanted it, that the delivery was postponed from time to time in obedience to his wishes and that he retained it for a number of weeks before he thought of rejecting it. This recital of the testimony certainly contains some evidence of acceptance. “ The question of acceptance or not is a question as to what was the intention of the buyer as signified by his outward acts.” Blackb. Sale, 22, 23.

There is presented here a combination of acts and omissions outlie part of the defendant indicative of acceptance, and which, were, therefore, necessarily submitted to the jury for consideration.

“ It is a question for the jury whether, under all the circumstances, the acts which the buyer does or forbears to do, amountr to an acceptance.” Bushel v. Wheeler, 15 Q. B. 442, per Coleridge, J.; Browne Stat. of Frauds, § 321; Gray v. Davis, 10 N. Y. 285.

In view of the independent agreement for the setting up of the-machine, its retention for that avowed purpose would support a-finding of acceptance. Browne Stat. of Frauds, 316g, 333; 8 Am. & Eng. Ency. of Law, 734; Jones v. Reynolds, 120 N. Y. 213, 217.

There was no alternative except to submit the question to the jury, and as none of the exceptions to rulings is meritorious, the judgment must be affirmed.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondent.  