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that the party becomes liable for the whole amount of
the goods if he accepts and receives part of the same
or the evidences or some of them of such things in
action, and the authorities ag^ee that where the ques-
tion is whether the contract has been fulfilled it is
sufficient to show an acceptance and actual receipt of
a part, however small, of the thing sold in order that
the contract may be held to be good, even though it
does not preclude the purchaser from refusing to ac-
cept the residue of the goods, if it clearly appears that
they do not conform to the contract. Benj. on Sales
(2d ed.), 117; Hiiide v. Whitehouse, 7 East, 65; Morton
V. Tibbett, 15 Ad. & EU. (N. &,) 434.

Hence, said Lord Campbell, in the case last cited,
the payment of any sum in earnest to bind the bar-
gain or in part payment Is sufficient, the rule being
that such an act on the part of the buyer, if acceded
to on the part of the vendee, is an answer to the de-
fense. Edam v. DudJUld. 1 Ad. & Kll. (ff. R.\ sw.



Accept and receive are the words of the statute in
question, but the law is well settled that an acceptance
sufficient to satisfy the statute may be constructive,
the rule being that the question is for the jury, whether
the cironmstances proved, of acting or forbearing to
act, do or do not amount to an acceptance within the
statute. Bushel v. Wheeler, 15 Ad. & £1L (K. S.) 445;
Chitty on Cont. (10th ed.) 307; Parker v. fTottis, 5 EU.
& BL »; LiUywhUe v. Devereux, 15 Mees. & Wels. 290;
Simmonde v. HunMe, 13 C. B. (K. S.) 231; Addison on
Cont. (6th ed.) 160.

Questions of the kind are undoubtedly for the jury,
and it is well settled that any acts of the parties in-
dicative of ownership by the vendee may be given in
evidence to show the receipt and acceptance of the
goods to take the case out of the statute of frauds.
Conduct, acts and declarations of the purchaser may
be given in evidence for that purpose, and it was held
In the case of Currie v. Anderton, 2 Ell. & EIL 506,
that the vendee of goods may so deal with a bill of
lading as to aflord evidence of the receipt and accept-
ance of the goods therein described. Oray v. Davis,
10 N. Y. 201.

Throughout it should be borne in mind that one of
the defendants in person visited the plaintiffs* place
of business, and while there ordered the liquors, and
that the liquors were all received by the defendanto at
their place of business and were sold by them for their
own l>eneflt, that the contract between the sellers and
purchasers was that the former should furnish the
labels as part of the contract, and the evidence shows
that they fulfilled that part of the contract and that
they delivered the same to the contracting party at
his hotel before he left the State where the purchase
was made.

Satisfactory evidence was also introduced by the
plaintiffs showing that they drew a draft on tiie de-
fendants for the payment of the price and that the de-
fendants answered the letter of the plaiutiflii declin-
ing to accept the same, as more fully set forth in the
record, in which they state that the purchase was on
four months, with the further privilege of extending
the time two months longer by allowing seven per
cent interest, adding that if the plaintiflii doubted
their word they had ** a written contract to that ef-
fect." What they claim in the letter is that the ar-
rangement was made with the salesman, and they state
that they would not have given him the order, if he had
not given them ** those conditions." They make no com-
plaint that the liquors were not of the agreed quan-
tity and quality, and certainly leave it to be implied
that they had been duly received and that they were
satisfactory.

It was contended by the i^aintifib that the case was
taken out of the statute of frauds ~(1) Because the
labels wore a part of what was purchased and that the
defendanto accepted and received the same at the
time and place of the purchase. (2) That the subse-
quent letter, as exhibited in the record, is sufficient
for that purpose.

Einou^ appeared at the trial to show that the labels
were copyrighted, and that the plaintUb agreed to
furnish the same without any additional charge, and
the bill of exceptions also shows that it was conceded
that the defendanto accepted and received the labels
at the hotel as claimed by the plaintiffiB. Still the de-
fendanto denied that the labels were of any value, or
that they entered into or constituted any part of the



THE ALBANF LAW JOURNAL.



469



judge submitted to the jury, remarking at the same
time that by the furnishing the labels with the liquors
the defendants acquired the right to use the copyright
to that extent, without which or some equivalent per-
mission or license, they would have had no such law-
ful authority.

Pursuant to these suggestions the jury were directed
to ascertain whether the liquors were worth more to
the defendants on account of the labels, and whether
the labels were included in the contract, and they were
instructed that if they found affirmatively in respect
to both of these inquiries then the receipt and accept-
ance of the labels as alleged took the case out of the
statute of frauds, because then there was a receipt and
acceptance by the defendants of a portion of the
things purchased.

Appropriate instruction was also given to the jury
in respect to the subsequent letter sent by the defend-
ants to the plaintiffs, and the jury were told by the
presiding judge that if they found, under the instruc-
tions given, that the defendants received and accepted
a part of the things purchased, then the contract was
made valid as a New York contract, and that their
verdict should be in favor of the plalntifllB. Currie v.
AnderaoUf 2 £11. & Ell. 508. That if the contract was
not made valid by the acceptance and receipt of the
labels, nor by the letter exhibited In the record, then It
was a Michigan contract, and their verdict should be
for the defendants. Meredith v. Meigh, 2 El. & Bl. ; Caa-
Ue V. Snoxcdenj Hurlst. & Norm. 835; Law Rep., 1 C.
P. 5.

Controlling authorities already referred to show that
the question whether the goods or any part of the
same were received and accepted by the purchaser is
one for the jury, to which list of citations many more
may be given of equal weight and directness. Just
exception cannot be taken to the form In which the
question was submitted to the jury, and the record
shows that the verdict was for the plaintiffs, and that
the jury found, In response to the fifth question, that
the label added to the value of the liquors, and that
they formed part or parcel of the price. Jackson y,
Lowe^ 7 Moore, 227.

Where goods are purchased In several parcels, to be
paid for at a future day, the whole, within the mean-
ing of the statute of frauds, constitutes but one con-
tract, and the delivery of part to the purchaser is suf-
ficient to take the case out of the operation of the
statute of frauds. MiUa v. Hunt, 20 Wend. 481.

Apply the finding of the jury In this case to the con-
ceded facts and It shows that the defendants were In
the situation of a purchaser who goes to a store and
buys different articles at separate prices for each arti-
cle, under an agreement for a credit as In this case,
accepting a part, but leaving the bulk to be forwatded
by public conveyance. Frequent cases of the kind
occur, and It Is well-settled law that the delivery of a
part of the articles so purchased, without any objec-
tion at the time as to the delivery, is sufficient to take
the case out of the statute of frauds as to the whole
amount of the goods. Mills v. IfiuU, 20 Wend. 434.

The delivery In such a case. In order that it may
have that effect, must be made in pursuance of the
contract, the question whether it was so made or not
being one for the jury, but if they find that question
in the affirmative, then it follows that the case is t«ken
out of the statute of frauds. Van Woert v. Railroady
or N. Y. 5U.



Parol evidence is admissible to show what the cir-
cumstances were attending the contract and to show
the receipt and acceptance In whole or in part of the
goods purchased. Tompkinson v. Spraightt 17 C. B.
704; Kershaw v. Ogden, 3 Hurlst. & Colt. 721.

Due acceptance and receipt of a substantial part of
the goods will be as operative as an acceptance and
receipt of the whole, and the acceptance may either
precede the reception of the article or may accompany
their reception. 2 Whart. Ev., 8 875.

Differences of opinion have existed upon some of
these matters, but all the authorities or nearly all con-
cur that the question is for the jury, to be determined
by the circumstances of the particular case. 2 Whart.
Ev. 875.

Viewed In the light of these suggestions It Is clear
that the question whether the evidence showed that
the case was taken out of the statute of frauds by the
acceptance and receipt by the defendants of a part of
what was purchased by them, in connection with the
letter of the defendants, exhibited in the record, was
fairly submitted to the jury, and that their finding In
the premises Is final and conclusive.

Attempt was also made by the plalntiflis to support
the judgment upon the ground that the defendants
were estopped to set up the statute of frauds as a de-
fense. In view of the fact that they had received the
liquors and sold the same for their own benefit, but it
is not necessary to examine that proposition In view
of the conclusion that the case Is taken out of the
operation of the statute by the other evidence and the
finding of the jury. Nor is it necessary to give any
consideration to the proposition that the act of the
State of Michigan to prevent the manufacture and
sale of spirituous and intoxicating liquors as a beverage
is repealed, for the same reason, and also for the addi-
tional reason that the repealing clause saves *'all ac-
tions pending and all causes of action which had ac-
crued at the time ** the repealing act took effect. Sess.
Acts, 1875, p. 279.

Having come to the conclusion that the case is taken
out of the statute of frauds, it Is not deemed neces-
sary to give th« other assignments of error a separate
examination. Suffice it to say that the court Is of the
opinion that there Is no error in the record.

Judgment affirmed.



LIABILITY OP LAND-OWNER FOR IMPROPER
USE OF LAND.

ENOUSH OOUBT OF APPEAL, MARCH 1, 1878.

HUBDMAN V. NORTH-EASTERN RAILWAY COMPANY,

88 L. T. Rep. (N. S.) 389.

A man who places an artificial mound upon his property
and thereby causes rain-water, percolating naturally, to
come on to the property of his neighbor, is liable to the
latter In respect of damage so caused.

A statement of claim alleged that defendants, being owners
of property adjoining the plaintiff's, placed a quantity
of soil and rubbish upon and against their wall, and
thereby raised the surface of defendants' land above
the leyel upon which plaintiff's house was built ; that
the rain which fell upon the said soli, etc., percolated
through the said wall into the plaintiff's house, and
caused damage. In the alternatlye it was alleged that
the defendants negligently and improperly placed the
soil, etc., upon their land, and ne^fllgently and improp-
erly built the wall, so that the rain water percolated
through the wall and Injured plaintiff's house. On de-
murrer, it was held (al&rmlng the decision below), that
the statement of claim stated a good cause of antlon.

APPEAL from a decision of Manlsty, J., giving
judgment for the plaintiff on a demurrer.



470



THE ALBANr LAW JOURNAL.



Statement of claim: L At the time of and before
the oommenoement of the damaice hereinafter men-
tioned, the plaintiff was and he still is possessed of a
house known as No. 16 Lodge terrace, Sanderland.
2. The defendants then were and still are possessed of a
certain close of land adjoining the said house of the
plaintiff. 8. The defendants placed and deposited in
and upon the said close of the defendants, and upon
and against a wall of the defendants which adjoins
and abuts against the house of the plaintiff, large
quantities of soil, clay, limestone, and other refuse,
close to and adjoining the said house of the plaintiff;
and thereby raised the surface of the defendants' land
above the level of the land upon which the plaintiflTs
house was built. 4. The rain which fell upon the said
soil, clay, limestone, and other refuse, so placed as
aforesaid, oozed and percolated through the said wall
of the defendants into the said house of the plaintiff,
and the plaintllTs house thereby became wet, damp,
unwholesome and unhealthy, and less commodious for
habitation. 5. By reason of the said acts of the de-
fendants the walls of the said house of the plaintiff be-
came and were very much injured, and the paper and
plaster upon the said walls have been destroyed. 6.
In the alternative the plaintiff alleged that the de-
fendants so negligently and improperly placed and de-
posited the said soil, clay, limestone, and refuse, upon
tlie defendants' said land, that the rain water falling
thereon oozed and percolated through and into the
plaintllTs house, whereby the plaintiff's house was
damaged as before mentioned.

The defendants put in a statement of defense, deal-
ing with the allegations In the amended statement of
claim. They also demurred to the whole claim, on the
ground ** that the acts, matters and things alleged to
have been done by the defendants do not give rise to
any right of action on the part of the plaintiff." The
plaintiff joined issue.

On the argument of the demurrer Manisty, J., gave
judgment for the plaintiff and against the demurrer.
The defendants appealed.

HersdieU, Q. C, and Oaintford Bruce, for the de-
fendants, cited Wilson v. Woddcn, 86 J^ T. Rep. (N. 8.)
639; L. Rep., 2 Sc. App.95; Fletcher v. Rylands, 19 L.
T. Rep. (N. 8.) 220; L. Rep., 3 H. L. 330; Baird v.
WiUiamaon, 16 C. B. (N. 8.) 876; Smith v. Kenrick, 7 C.
B. 564; Crompton v. Lea, 31 L. T. Rep. (N. 8.) 469; L.
Rep., 19 Eq. 115; 44 L. J. 69, Ch. ; Smith v. Fletcher, 31
L. T. Rep. (N. 8.) 190; L. Rep., 9 Ex. 64; NidioUs v.
MaraUind, 85 L. T. Rep. (N. 8.) 728; L. Rep., 10 Ex.
226; and2Ex. Div. 1. •

Waddy, Q. C, and J. Edge, for the plaintiff.

Cotton, L. J. In this case plaintiff has brought an
action for injury alleged to have been caused to his
house, which abuts on a wall of the defendants, by
certain acts done by the defendants on their own
land. The question is raised on demurrer to the state-
ment of claim, and the question, therefore, is whether
that alleges a good cause of action. For the purposes
of our decision we muRt assume that the plaintiff has
sustained substantial damage, and we must construe
the statement as alleging that the surface of the de-
fendants' land has been raised by earth and rubbish
placed thereon, and that the consequence of this is
that rain water falling on the defendants" land has
made its way through the defendants' wall Into the
house of the plaintiff, and has caused the injury com-
plained of. The question Is, are the defendants, ad-



mitting this statement to be true, liable to the plain-
tiff? and we are of opinion that they are. The heap
or mound on the defendants' land must, in our opin-
ion, be considered as an artificial work. Every occu-
pier of laud is entitled to the reasonable enjoyment
thereof. This is a natural right of property, and it Ib
well established that an occupier of land may protect
himself by action against any one who allows any filth
or other noxious thing produced by him on his own
land to interfere with this enjoyment. We are fur-
ther of opinion that, subject to a qualification to
be hereafter mentioned, if any one by an artificial
erection on his own land causes water, even though
arising from natural rainfall only, to pass Into his
neighbor's laud, and thus substantially to Interfere
with his enjoyment, he will be liable to an action at
the suit of him who Is so injured, and this view agrees
with the opinion expressed by the Master of the
Rolls in the late case of Broder v. ScUUard, L. Rep., 2
Ch. Div. 700: **If there were no authority on the
question I should have felt no difficulty about it, be-
cause I take it that the law is this, that a man is enti-
tled to the comfortable enjoyment of his dwelling-
house. If his neighbor makes such a noise as to in-
terfere with the ordinary use and enjoyment of his
dweUiug-house, so as to cause serious annoyance and
disturbance, the occupier of the dwelling-house is en-
titled to be protected from It. It Is no answer to say
that the defendant is only making a reasonable use of
his property, because there are many trades and many
occupations which are not only reasonable, but neces-
sary to be followed, and which still cannot be allowed
to be followed In the proximity of dwelling-houses,
so as to Interfere with the comfort of their Inhabit-
ants. I suppose a blacksmith's trade Is as necessary
as most trades In this kingdom; or I might take in-
stances of many noisy and offSensive trades, some of
which are absolutely necessary, and some of which,
no doubt, may not only be reasonably followed, but
to which it is absolutely and indispensably neces-
sary for the welfare of mankind that some houses and
some pieces of laud should be devoted; therefore I
think that is not the test. If a stable is built, as this
stable is, not as stables usually are, at some distance
from the dwelling-houses, but next to the wall of the
plaintifTs dwelling-house, in such a position that the
noise would actually prevent the neighbors sleeping,
and would frighten them out of their sleep, and would
prevent their ordinary and comfortable enjoyment
of their dwelling-house, all I can say Is, that It Is not
a proper place to keep horses in, although the horses
may be ordinarily quiet." I have limited this state-
ment of liability to liability for allowing things in
themselves offensive to pass into a neighbor's prop-
erty, or for causing by artificial means things In them-
selves inoffensive to pass into a neighbor's property to
the prejudice of his enjoyment thereof, because there
are many things which when done on a man's own
land (as building so as to interfere with the prospect,
or so as to obstruct lights not ancient) are not action-
able even though they interfere with a neighbor's
enjoyment of his property. But it is urged that this
is at variance with the decision that if, in consequence
of a mine owner on the rise working out his minerals,
water comes by natural gravitation into the mines of
the owner on the deep, the latter mine owner cannot
maintain any action for the loss which he thereby sus-
tained. But excavating and raising the minerals is



THE ALBANY LAW JOQRNAL.



471



ooDBidered the natural use of miueral land* aud these
deoUious are referable to this priuciple, that the owner
of laud holds his right to the enjoyment thereof, sub-
ject to suoh anuojauce as is the consequence of what
is called the natural user by his neighbor of his laud,
and that when an interference with this enjo3rment
by something in the nature of nuisance (as distin-
guished from au interruption or disturbance of an
easement or right of property in ancient lights, or the
support for the surface to which every owner of prop-
erty is entitled) is the cause of complaint, no action
can be maintained if this is the result of the natural
user by a neighbor of his land. That this is the prin-
ciple of these oases appears from the case of Wilson ▼.
Waddelly L. Rep., 2 App. 99, and from what is said by
the Lord Chancellor in Rylands v. Fletcher ^ L. Rep.,
3 H. L. 828. Moreover, the cases referred to have laid
down that a mine owner is exempt from liability for
water which, in consequence of his works^ flows by
gravitation into an adjoining mine, only if his works
are carried on with skill and in the usual manner, and
in the present case it is stated that the defendants
have conducted this operation negligently and im-
properly. The decisions, therefore, as regards the
rights of adjoining mine owners do not enable the
defendants to discharge themselves from liability.
It was also argued that a land-owner, who, by opera-
tions on his own land, drains the water percolating
underground in the property of his neighbor, is not
liable to an action by the man whose land is thus de-
prived of its natural moisture, and this, it was ar-
gued, was inconsistent with a judgment for the plain-
tiff on a statement alleging as a cause of action an
alteration in the percolation of water. It is sufficient
to say that no one can maintain an action unless there
is some injury to something to which the law recog-
nizes his title, and the law does not recognize any title
in a land-owner to water percolating through his prop-
erty underground, and in no definite channel. We
are of opinion that the maxim, ** Sic uUre tuo ut
aliennm non lceda«,'* applies to and governs the pres-
ent case, and that, as the plaintiff by his statement of
claim alleges that the defendants have by artificial
erections on their land caused water to flow into the
plaintiffs house in a manner in which it would not,
but for such erections, have done, the defendants are
answerable for the injury caused thereby to the plain-
tiff.



RECENT AMERICAN DECISIONS.

SUPRBME OOUBT OF OHIO. SUPREME COURT COM-
MISSION OF OHIO.*

ADYEB8K POSSESSION.

Line fencs permitted to he off from line: effect of, -
Where, by the title deeds of adjoining proprietors of
land, the dividing line is left open to be established by
a survey or measurement, and is thereafter fixed and
marked by mutual agreement between them, and they
occupy to suoh established line for a period sufficient
to create title under the statute of limitations, such
proprietors will be held to the line so established, al-
though it may not be the true line. Under such agree-
ment, one of the parties, holding under a deed, aud

* To appear in 90 and 81 Ohio St. Reports. From B. De-
wltt, Esq., State Reporter.



in actual possession of part of the tract, is deemed to
be in possession of the entire tract described in his
deed, up to the division line, there being no actual ad-
verse possession against him. Smith v. McKay (Com.).

DAMAGES.

In case of trespass: cxUtlng of timber: innocent pur-
cfioser not liable for impaired value by cutting.— Timber
was cut from land of B. by trespassers, who by their
labor converted it into cord wood and railroad ties,
thus increasing its value three-fold. It was then sold
to an innocent purchaser, who was sued by B. for the
value of the wood and ties. Whatever might be the
rule of damages, as against the wrong-doers, as against
innocent purchasers B. cannot recover the value of the
timber as enhanced by the labor of the wrong-doers,
after it was severed from the realty. Lake Shore &
Mich. So. Raitujoy Co. ▼. Hutchins (Com.).



Purchane of goods on credit by one without means:
ithen fraudulent and when not so. — A contract for the
purchase of goods on credit, made with intent on the
part of the purchaser not to pay for them, is fraudu-
lent ; and if the purchaser has no reasonable expecta-
tion of being able to pay, it is equivalent to an inten-
tion not to pay. But where the purchaser intends to
pay and has reasonable expectations of being able to
do so, the contract is not fraudulent, although the pur-
chaser knows himself to be insolvent and does not
disclose it to the vendor, who is ignorant of the fact.
Talcott v. Henderson (Court).

PARTKEBSHIP.

1. Liability of retiring partner.— A retiring partner
remains liable for all the existing debts of the firm, to
the same extent as If he had not retired. An agree-
ment between him and the remaining partners, or
with the new firm that succeeds, that they will assume
and pay all such debts, while valid as between the
partners, has no effect upon the creditors of the old
firm, unless they become parties thereto. Rawson v.
Taylor (Com.).

2. That firm has assets to pay debts does not relieve re-
tiring pawner.— R. held the promissory note of the
firm of T. G. & Co, After it was given, some mem-
bers of the firm retired, leaving assets sufficient to
pay all debts, and taking the obligation of the succeed-
ing new firm, to pay all debts and save the retiring
partners harmless. Held, that unless R., by some valid
contract, express or implied, had made himself a party
to this new arrangement, or had so acted as to be
estopped, his rights on the note against all the mem-



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