sample in one place, to be afterwards delivered at another, is within the statute a.

It is immaterial that the price agreed upon was enhanced by the fact, that the vendor had to incur an expense in causing the goods to be conveyed to the purchaser b.

Delivery to a carrier is not suffi

cient.

SECTION XV.

DELIVERY AND ACCEPTANCE.

-a

THE words of the seventeenth section are, except the buyer shall accept part of the goods so sold, and actually receive the same." To satisfy this requisite, two facts are necessary,— delivery by the vendor with the intention of transferring the possession, and an acceptance by the vendee with an intention of taking to that possession as owner; and therefore there must be an actual delivery. A delivery in law, though it might enable the vendor to maintain an action as for goods sold and delivered, is not a sufficient compliance with this provision, unless there be a delivery in fact.

Thus, though it is settled that delivery to a carrier, to be conveyed to a vendee, is at law a delivery to all intents and purposes, save as to the vendor's right of stoppage in transitu, so as to enable the latter to maintain an action for goods sold and delivered against the vendee ; yet it is now established, (though formerly it was considered otherwise,) that such delivery is not a sufficient compliance with the above requisite.

The result of the cases on this subject appears to be, that so long as the vendor has control over the goods, so as to retain his lien for the price, or so long as the vendee can object to their quantity or quality, there can be no acceptance within the

meaning of the statute. The following cases will illustrate this position.

Where the vendee verbally agreed at a public market, with the agent of the vendor, to purchase twelve bushels of tares, (then in the vendor's possession, constituting part of a larger quantity in bulk,) to remain in the vendor's possession till called for; and the agent on his return home measured the twelve bushels, and set them apart for the vendor; held, that this did not amount to an acceptance; for if the vendee had gone to the vendor's granary after the sale, and upon inspection discovered that the tares did not correspond with the sample, he might have objected to them, and if so, there could not have been any previous acceptance a. So where A., a merchant in London, had been in the habit of selling goods to B., resident in the country, and in pursuance of a parol order from B., sent goods to a wharfinger, to be forwarded in the usual manner; the ship containing the goods having been lost; the court held, that the acceptance not being by the vendee himself, was not sufficient. Abbott, C. J., having referred to the preceding case, observed, "that there could be no actual acceptance, so long as the buyer continued to have a right to object, either to the quantum or quality of the goods." b

So where goods were bought abroad, and there delivered on board a ship chartered by the vendee; held not a sufficient acceptance. So where the purchaser appointed the mode in which the goods should be conveyed, and directed a third person in whose possession the goods were to see them delivered and measured d. So where A. agreed to purchase a horse from B., for ready money, and to take him within a time agreed upon, and about the expiration of that time, A. rode the horse and gave directions as to its treatment, &c., but requested that it might remain in B.'s possession for a further time, at the expiration of which he promised to fetch it away, and pay the price; the horse died before A. paid the price or took him away;

Howe v. Palmer, 3 B. & A. 321. See Smith v. Surman, ante, 1040.

Hanson c. Armitage, 5 B. & A. 557. And see Rohde r. Thwaites, 6 B. & C. 392, post, 1058.

C

Acebal v. Levy, 10 Bing. 376. d Astey v. Emery, M. & S. 262. See Anderson v. Hodgson, 5 Price, 630.

held, not to amount to an acceptance, for B. never parted with the possession or control; at all events he had a lien for the price. But where the defendant bought two horses from the plaintiff, a livery stable keeper, and desired to keep them at livery for him, whereupon the plaintiff removed them out of his sale stable into another stable; held, that the plaintiff by assenting to the defendant's order, and changing the stables in which the horses had been kept, had relinquished his lien for the price, and that he held the horses not as owner, but as any other livery stable keeper might have done, and consequently, that there was a delivery and acceptance b.

Where goods to the value of 1441. were made pursuant to order, but continued, by the desire of the vendee, upon the premises of the vendor, excepting a part to the value of 21. 10s. which the former took away; held, that there was no delivery and acceptance of the rest of the goods within the meaning of the statute C.

When the facts and intention of the parties are ascertained, it is for the court to decide whether, in law, they constitute an acceptance; but when those are disputed, it is a question for the jury whether there has been a delivery and acceptance in point of fact d. Where, by one of the printed conditions in a catalogue of a sale by auction, the purchaser was to pay 301. per cent. upon being declared the highest bidder, and the residue before the goods were removed; and a person attended such sale, bid for a lot, and having been declared the

a

Tempest v. Fitzgerald, 3 B. & A. 680. See also Carter v. Toussaint, 5 B. & A. 855, where, by the vendee's direction, the horse was fired and sent to grass, but entered as the property of the vendor.

Elmore v. Stone, 1 Taunt. 458. The authority of this decision was doubted by Bayley, J., in Howe v. Palmer, 3 B. & A. 324, and by Best, C. J., in Proctor v. Jones, 2 C. & P. 534.

the defendant, having purchased a stack of hay by parol, sold part of it to a third person, by whom it was taken away, without the consent of the vendor; it having been left to the jury whether there had been an acceptance by the defendant, they found a verdict for the plaintiff. On a motion for a new trial, on the ground that the judge had left a matter of law as a fact for the jury, the court said, that the specific finding by the jury, that there was an acceptance, put an end to the question of law. Chaplin e. Rogers, i East, 192.

highest bidder, the article was immediately delivered to him, but in a few minutes afterwards he returned it, stating that he had been mistaken in the price, and refused to take it, and no part of the price for which it was knocked down having been paid; held, that it was a question of fact for the jury, whether there had been such a delivery by the seller and acceptance of the article by the buyer, as would take the case out of the statute, so as to show that it was the intention of both parties to be bound by the sale, no deposit upon the price having been made by the vendee, agreeably to one of the printed conditions in the catalogue". In an action for the price of a fire-engine. sold by the plaintiff to the defendant, the defendant pleaded the statute of frauds, and the plaintiff replied, that the defendant had accepted the goods. It appeared that the defendant, after the sale of the fire-engine to him by the plaintiff, had taken a person to look at it, and had mentioned who were likely to want to buy it, and that to another person the defendant said, "I know that I am going to do it," and that to a third he said, I have a concern in the engine;" held, that it was for the jury to consider on this evidence whether the defendant had treated the fire-engine as his, and dealt with it as such, for that, if so, the plaintiff was entitled to a verdict ". Where the plaintiff built a waggon for the defendant, and the latter employed a smith to affix thereon the iron work, and a tilt maker to put on a tilt, the waggon remaining in the possession of the plaintiff; held, not to amount to an acceptance of the waggon by the defendant. But, said Tindal, C. J., "it might have been otherwise if these acts had been done after the waggon was completed."e

It has been held, that the marking by the vendee of goods in the shop of a linendraper 4, and the cutting by the vendee of wine, of the spills by which it was tasted, amounted to an acceptance; but the contrary has been held in a more recent case, where the defendant went into the shop of the plaintiff and pur

Marking the goods by the

vendee.

Not an acwithin the

ceptance

statute.

Acceptance of part is sufficient.

66

chased various articles, some of which he marked with a pencil, others were measured in his presence, and others he assisted to cut from larger bulks; held, that there was no acceptance of the goods, to take the case out of the statute. "As long," said Holroyd, J., as the vendor preserves his control over the goods, so as to retain his lien, he prevents the vendee from accepting and receiving them as his own, within the meaning of the statute." a Where the vendor of goods delivered to the vendee a delivery order, directed to the warehouseman in whose possession the goods were; it was held to constitute an acceptance b. But, in a recent case, the court decided that the acceptance of a delivery order, was not equivalent to an actual acceptance, until the person who had possession of the goods had accepted the order for delivery, and thereby assented to hold the goods as the agent of the vendee.

An acceptance of part of the goods is a sufficient compliance with the statute. A. having in his warehouse a quantity of sugar, in bulk more than sufficient to fill twenty hogsheads, agreed to sell twenty hogsheads to B., but there was no note in writing of the contract sufficient to satisfy the statute of frauds; four hogsheads were delivered to and accepted by B.; A. filled up and appropriated to B. sixteen other hogsheads, and informed him they were ready, and desired him to take them away; B. said he would take them away as soon as he could; held, that the appropriation having been, made by A., and assented to by B., the property in the sixteen hogsheads thereby passed to the latter, and that their value might be recovered by A. under a count for goods bargained and sold 4. If a sample

a

Baldey v. Parker, 2 B. & C. 37, ante, 1053. See also Proctor v. Jones, 2 C. & P. 532.

b Searle v. Keeves, 2 Esp. 598. Bentall v. Burn, 3 B. & C. 423. d Rohde t. Thwaites, 6 B. & C. 388. In this case Bayley, J., said, "where a man sells part of a large parcel of goods, and it is in his option to select part for the vendee; as soon as he appropriates part for the benefit of the vendee, the pro

perty in the thing sold passes to the vendee, although the vendor is not bound to part with the possession until he is paid the price." Holroyd, J., said, "that the selection made by the plaintiff, and the adoption of that act by the defendant, rendered the goods the property of the latter, subject to the vendor's lien as to the price." This case was decided on the ground that it was an acceptance within the statute, yet see ante, 1056, n. *.