"A contract to sell or a sale of any goods or choses in action of the value of one hundred dollars or upwards 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."

"The acceptance referred to is that which the statute requires to give validity to the contract. It must be with intention to perform the whole contract and assert the buyer's ownership under it, but it is sufficient if it be of part of the goods only. Such an acceptance implies the existence of a completed contract, sufficient to pass the title, which is not to be confounded with that actual transfer of possession necessary to defeat the vendor's lien or his right of stoppage in transitu, or to show an actual receipt under the statute." Townsend v. Hargraves, 118 Mass. 333; 20 Cyc. 245, 240.

It is to be noted that the plaintiff's request to charge assumes that the plaintiff and defendant have made and entered into a contract for the sale and delivery of 35 barrels of sugar, and that the defendant has actually accepted and received 5 barrels of sugar as a part of the 35 barrels bought of the plaintiff upon their contract. To have complied with the plaintiff's request would have ignored one of the plain provisions of the statute relating to the delivery, acceptance, and receipt of personal property.

The court below having found the issues for the defendant upon her answer and counterclaim, we cannot grant a new trial unless it appears that some question of law has been improperly decided. The verdict of the jury has not been questioned as being against the evidence. This is not before us.

We may assume that the jury were properly instructed, as no question is raised as to the charge as given.

The only assignment of error that requires attention is the one relating to the refusal of the trial court to charge as requested, herein before referred to. This, like the demurrer, admits that there was a contract made for the sale and delivery of 35 barrels of sugar, and that a part of this was actually accepted and received by the defendant for the whole quantity that was purchased. In general "a part may be delivered for the whole, and in general a delivery of part is a delivery of the whole, if it be an integral part of one whole, but not if many things are sold and bought as distinct articles, and some of them are delivered and some are not." 3 Parsons on Contract (6th Ed.) p. 43.

From this it appears that the agreement made met the requirements of the statute of frauds, which was sufficient to sustain the defendant's counterclaim for damages in the absence of equitable considerations, which do not appear. Kilday v. Schancupp, 91 Conn. 32, 34, 98 Atl. 335, L. R. A. 1917A, 151. There is no error.

The other Judges concurred.

(93 Conn. 614)

OLESEN v. BECKANSTIN. (Supreme Court of Errors of Connecticut. July 16, 1919.)

1. TRIAL 392(4)-REQUEST FOR FINDINGSCOMPLIANCE.

It is enough that the court found in effect, though not in the same language, as requested. 2. APPEAL and Error 1010(1)—REVIEW OF FINDINGS.

Findings justified by evidence before the court cannot be reviewed.

3. CUSTOMS AND USAGES 15(1)—APPLICATION TO CONTRACT.

To a contract merely to put in a complete hot water system, though in writing, is to be applied, as interpreting the otherwise indeterminate intention of the parties, a custom of contractors to draw off the water after testing for leaks, in the absence of consent of the owner to leave it in or notice to him that it is being so

left.

4. CUSTOMS AND USAGES ——12(2)—EVIDENCE OF KNOWLedge.

Knowledge of a custom or usage of a trade is properly attributed to a party to a contract engaged in such trade.

5. NEGLIGENCE 5-CUSTOM-CONTRACTOR'S NEGLECT.

A contractor for installing a hot water heating plant may be held negligent in leaving water therein after testing it, contrary to custom not to do so without consent of or notice to the owner, without invoking the custom strictly as

an element of the contract.

6. APPEAL AND ERROR 362(2)—STATEMENT OF REASON OF APPEAL.

A statement of a reason of appeal that, "the court misconceived the issues and mistook the law in rendering the decision," is too general, not directing attention to any particular point. 7. CUSTOMS AND USAGES 19(2)—EVIDENCE

AS TO EXISTENCE.

Questions to develop evidence of a custom are not open to objection of there not yet being evidence of a well-recognized custom.

Appeal from Court of Common Pleas, Hartford County; Daniel A. Markham, Judge.

Action by Hans H. Olesen against E. I. Beckanstin for damages for negligent performance of a contract to install hot water heating apparatus. Facts found and judg ment for plaintiff, and defendant appeals. Affirmed.

The contract was evidenced by a proposal in writing as follows:

"Hartford, Conn., April 11, 1917. "Mr. H. H. Olesen, Esq., No. 577 Blue Hills Avenue, Hartford, Connecticut-Dear Sir: My price to install one complete hot water heating system in your house now under construction on Salisbury street is four hundred and sixty-five ($465.00) using for the purpose 1 No. 630 Spence

"Yours very truly,

Joseph P. Tuttle and Reinhart L. Gideon, both of Hartford, for appellant. James B. Henry, of Hartford, for appellee.

GAGER, J. (after stating the facts as above). [1, 2] Certain of the reasons of appeal are based upon claimed errors in the finding and errors in refusing to find as re

(5) At about the time the defendant completed the work under the aforesaid contract, he filled the system with water to satisfy himself that it was tight and free from leaks, and turned over said heating system to the plaintiff and left the premises without withdrawing the water, and never thereafter drew off said water from said system.

(6) The defendant never informed the plaintiff, nor any one in any manner acting for the plaintiff, that he, the defendant, had filled said system with water, or that he had left any water in said system.

(7) It is a custom among heating contractors and in the heating installation trade, and in the installation of heating systems such as set out in the foregoing contract, in and about Hartford, to draw off the water from said heating system when placed there for the purposes set out in paragraph (5) hereof before final completion of the work and before turning over such a system to the owner. (8) The defendant knew that he should not leave water in said system which he installea for the plaintiff without he had the plaintiff's consent so to do, or without he first notified the plaintiff that he was going to leave water in said system, and he negligently left the water in the system without such consent and without giving the plaintiff information.

(9) The plaintiff visited said premises in the fall or early in the winter in the year 1917. The plaintiff when at said premises found the water in certain radiators and pipes had frozen and broken said radiators and pipes, and the water from said system had run out in the rooms of said premises and damaged said rooms. The plaintiff notified the defendant of these facts and requested him to repair said damages. This was the first time the plaintiff had any knowledge that any water had been or was left in said system. The defendant neglected and refused to repair said damages.

The court further found that the defendant was negligent in leaving the water in the system without the consent of the plaintiff and without informing him.

The plaintiff thereafter repaired the heating system at a cost of $208.81, and redressed certain floors damaged by water at a cost of $18.50, and the court rendered judgment for the plaintiff to recover these sums, amounting to $227.31, from which judgment the defendant appeals.

effect find as to performance as requested by the defendant, though not in the same language. As to the other matters complained of in this respect, it is the ordinary case of conflicting evidence where the defeated party is dissatisfied because his evidence was not believed. A careful examination of the print. ed testimony certified to this court upon the appeal shows that there was evidence before the court which, if believed, fully justified its action both in finding and refusing to find so far as any material facts are concerned. To change or correct would involve a retrial of pure questions of fact. There is not sufficient foundation for the claims of the appellant to justify setting out the evidence in detail.

The

[3, 4] The more important claim of the defendant is that the contract was in writing, and that the finding of a custom that heating contractors draw off the water of hot water heating systems after testing for leaks, unless consent of the owner is obtained to leave it in or he is first notified, varies a written contract and imposes upon the defendant a duty he did not contract to perform. written contract in this case was most simple. It was to put in a complete hot water system of a specified kind and capacity for a certain sum of money, and there it stopped. The custom found by the court relates to a detail of the work of installation in no way contradictory of the contract, but stating how in the trade, in the absence of contract to the contrary, the heating system should be left by the contractor. We have recently referred to the office of custom and its proof in contracts, whether oral or written, in Kinney v. Horwitz, 93 Conn. 215, 105 Atl. 439:

"This finding as to custom in no way contradicts the written evidence of the contract. It states how, in the trade, payment was to be made in the absence of contract to the contrary, and its usage becomes a part of the contract. As stated in Leach v. Beardslee, 22 Conn. 404, 408: 'In such case it may be taken that the usage entered into and became part of the contract.' This principle is well established in reference to all contracts, whether written or oral. Judge Story, in The Schooner Reeside, 2 Sumner (U. S.) 567, * as quoted with approval in Seymour v. Page, 33 Conn. 61, 66, said: "The true and appropriate office of a usage or custom is to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions, and acts of a doubtful or equivocal character.' Wiggin v.

*

Federal Stock & Grain Co., 77 Conn. 507, 516, 59 Atl. 607; Skiff v. Stoddard, 63 Conn. 198, 219, 26 Atl. 874, 28 Atl. 104, 21 L. R. A. 102; Kilgore v. Bulkley, 14 Conn. 362, 390. It is therefore not only proper, but necessary, in order to do justice between the parties, to construe the contract with reference to the custom as found by the court."

What was there said is applicable to the present case. In addition to the cases cited in Kinney v. Horwitz, supra, we quote, as specially applicable to a case where both parties may be presumed from their business to be familiar with the custom, from Smith & Co. v. Russell Co., 82 Conn. 116, 72 Atl. 577:

"In the absence of any provision in the contract relating to the delivery upon credit, a lawful and reasonable custom or usage of the trade relating thereto will be taken to have entered into and become a part of the contract. Leach v. Beardslee, 22 Conn. 404, 409; Skiff v. Stoddard, 63 Conn. 198, 219, 26 Atl. 874, 28 Atl. 104 [21 L. R. A. 102]. When both parties to the contract are engaged in the trade, they will be presumed to have knowledge of such custom. It is not necessary in such a case to prove actual knowledge, or that the custom is so general or universal that knowledge may be presumed. It was enough, therefore, to show that there was a usage or custom of the trade in which it was undisputed that both the parties to the contract were engaged, and it was not essential, as claimed by the plaintiff, that the jury should have been told that the custom must be universal and general."

The court was quite within the law in finding and applying the custom to the written contract as interpreting the otherwise indeterminate intentions of the parties, and also in attributing knowledge of the custom

to the defendant.

[5] We do not think, however, upon the facts of this case, that it is necessary to invoke the custom strictly as such as an element of the contract in order to hold the defendant liable for negligence. His contract was to install a hot water heating system. The court, in its memorandum of decision incorporated in the finding, well said:

"The defendant undertook to install a complete system. The system would not be installed complete, unless so installed that it would not leak. The defendant, to satisfy himself that the system would not leak, filled it with water and tried it out. He then negligently left the

water in the system, of which the plaintiff had no knowledge. Subsequently the water froze and damaged the system."

The contract necessarily implies, not only that the work should be properly done, but that it should be left in such condition, having in view the owner's lack of knowledge and the nature of the work done, that damage would not normally arise from freezing should it so happen that the owner did not discover the presence of water in the pipes before the freezing occurred. The proof of

care in the trade required under the circumstances. If there was any error regarding the custom this defendant cannot complain. The law is summarized upon this point in 29 Cyc. p. 435, as follows:

"While in some jurisdictions the ordinary usage or custom of the business or occupation is made the test of negligence, the weight of authority is that, as negligence is the doing or failure to do what ordinarily prudent men would do, the test of ordinary usage is too low, and hence proof of custom would not tend to show absence of negligence, especially where the custom is clearly a careless or a dangerous one. In other jurisdictions it is held that the custom may be considered, but is not conclusive."

Numerous cases are cited in support of this proposition. Upon the facts as found the court was fully justified in finding that the act of the defendant in leaving the water in the system without the notice to or knowledge of the plaintiff was negligence.

[6] The appellant stated as one reason of appeal that

"The court misconceived the issues and mis

took the law in rendering the decision set forth in the memorandum of judgment."

This is too general to furnish a ground of appeal because it does not direct the attention of the court to any specific point as to which the trial court was in error. It is never enough to say simply that the court rendered a wrong judgment. The reasons why must be stated.

[7] The defendant also bases his appeal upon error in the admission against objection of testimony of the plaintiff and in the examination by the court. The plaintiff had

been asked about custom when counsel for defendant said:

"Now, I object to the question simply because there is no evidence as yet that there is any heating line as to leaving water in the system.” well-recognized custom among contractors in the

The existence of a well-recognized custom must necessarily be established by the proof of one or more witnesses testifying thereto, and the very object of the question was to develop evidence showing such a custom and was obviously so understood, for the most of the nine pages of testimony printed in the finding for the purpose of exceptions is testimony of other witnesses of the existence of the custom, with no objection whatever thereto except the objection just quoted. We suppose the real ground of exception is that custom was not in the case for any purpose. As stated above we think it was, both as implied in and interpretive of the contract and also as evidential on the question of negligence. The objection to the examination of the court was evidently of the same character, and neither of them was well taken. There is no error.