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forced (a). At a sale by auction, after a lot has been knocked down to a purchaser he may countermand the auctioneer's authority to sign the contract for him (b).

of goods

section.

The 17th section excepts from its operation the cases Acceptance in which "the buyer shall accept part of the goods so sold and receipt and actually receive the same," so that upon an acceptance under 17th and receipt of goods being established, the contract of sale under which they were received is not affected by the statute. The defendant having accepted and received certain goods above the value of £10, it was held that the plaintiff might prove by parol evidence a contract of sale to the defendant for ready money; although the defendant asserted that he accepted and held the goods by agreement as security for a previous debt (c). The acceptance and receipt of the goods sold, like the memorandum in writing, must take place before an action is brought, in order to obviate the effect of the statute upon the contract in that action (d).

In order to constitute an acceptance and receipt within the statute there must be a delivery of the goods by the vendor, with an intention of vesting the right of possession in the vendee; and there must be an actual acceptance by the latter, with an intention of taking to the possession as owner (e). Such delivery and acceptance are matters of fact to be found by the jury (ƒ). At a sale of goods by auction upon the conditions that the buyer was to pay 30 per cent. of the price upon being declared the highest bidder, and the residue before the goods were removed, a lot was knocked down. to the defendant and handed to him immediately without any payment, and the defendant shortly after returned it, alleging that he was mistaken in the price at which it was knocked down to him; it was held to be a question for the jury whether there had been a delivery by the seller and an acceptance by the buyer with an intent to transfer the right

(a) Farmer v. Robinson, 2 Camp. 339, note; and see Warwick v. Slade, 3 Camp. 127.

(b) See Jonesv. Nanney, 1 M'Clel. 25. (c) Tomkinson v. Staight, 17 C. B. 697; 25 L. J. C. P. 85.

(d) Bill v. Bament, 9 M. & W. 36,

40; ante, p. 143.

(e) Phillips v. Bistolli, 2 B. & C. 511; Maberley v. Sheppard, 10 Bing. 99, 102.

(f) Ib.; Edan v. Dudfield, 1 Q. B. 302, 307; Lillywhite v. Devereux, 15 M. & W. 285, 291.

Acceptance

of possession (a). Upon a sale of goods, then being in the seller's warehouse, the buyer took away a portion, but immediately sent it back stating that the goods were of inferior quality; it was held that there was evidence for the jury of an acceptance and receipt within the statute (b).

Upon a sale of unascertained goods by description and of the goods. quantity it was formerly held that the statute intended such an acceptance as amounted to an acknowledgment by the buyer of a performance of the contract by the seller as to the goods delivered, and precluded him from afterwards objecting to the quantity and quality of the goods (c). But according to more recent decisions there may be an acceptance and receipt of goods by a buyer within the Statute of Frauds, although he has done nothing to preclude himself from objecting that they do not correspond with the contract (d). So, there may be an acceptance of the goods. sufficient to satisfy the statute, though not sufficient to preclude the buyer from suing the seller for non-delivery (e); or to enable the seller to sue the buyer in an action for goods sold and delivered (f). Upon a sale of goods by sample the seller delivered the goods to a carrier named by the buyer, and the buyer resold the goods by the same sample and directed the carrier to convey them to the sub-purchaser, who rejected them as not according with the sample; it was held that there was sufficient evidence of an acceptance within the statute to admit parol evidence of the contract, though the buyer might still object that the goods delivered did not agree with the sample (9). So, where goods were delivered on board a ship to the order of the defendant, who received the bill of lading and dealt with it as owner of the goods, it was held that there was evidence

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of an acceptance within the statute (a). The buyer under a contract for the sale of goods of a certain description having received the goods delivered into his warehouse, unpacked the whole, and considering it inferior to the description repacked it and returned it; it was held that such dealing with the goods, not being with the intention of taking possession, did not alone constitute an acceptance (b).

The acceptance of the goods may be made while they remain in the possession of the seller and before the actual delivery and receipt, which however are also necessary to satisfy the statute (e). Thus, where the buyer selected the specific goods to be delivered under the contract, and they were afterwards delivered to a carrier appointed by the buyer to receive them, it was held that there was an acceptance within the statute before the delivery (d).

A carrier appointed by the buyer to receive the goods. from the seller and carry them, or a warehouseman or wharfinger appointed by the buyer to receive the goods, is not in general authorized to accept them within the statute; so that upon a sale of unascertained goods a delivery by the seller to the carrier, or wharfinger, or warehouseman, appointed by the buyer does not alone, without any act of acceptance by the buyer, satisfy the statute (e). A delivery of such goods to a railway company to be forwarded to a station specified by the buyer, which are duly forwarded and lie at the orders of the buyer, does not alone satisfy the statute (f). The delivery and receipt of such goods on board a ship chartered by the buyer for the purpose of carrying them is not an acceptance by him (g); but the buyer may receive and so deal with the bill of lading as to be equivalent to an acceptance of the goods (h).

(a) Currie v. Anderson, 2 E. & E. 592; 29 L. J. Q. B. 87; and see Meredith v. Meigh, 2 E. & B. 364.

(b) Curtis v. Pugh, 10 Q. B. 111. (c) Cusack v. Robinson, 1 B. & S. 299; 30 L. J. Q. B. 261.

(d) Ib.; and see Saunders v. Topp, 4 Ex. 390.

(e) Hanson v. Armitage, 5 B. & Ald. 557; Johnson v. Dodgson, 2 M. & W. 653; Hunt v. Hecht, 8 Ex. 814; Meredith v. Meigh, 2 E. & B. 364; overruling Hart v. Sattley, 3 Camp.

528; Hart v. Bush, E. B. & E. 494 27 L. J. Q. B. 271.

(f) Norman v. Phillips, 14 M. & W. 277; Smith v. Hudson, 34 L. J. Q. B. 145; and see Coombs v. Bristol and Exeter Ry. Co., 3 H. & N. 510 27 L. J. Ex. 401; Nicholson v. Bower, 1 E. & E. 172; 28 L. J. Q. B. 97.

(g) Acebal v. Lery, 10 Bing. 376. (h) Currie v. Anderson, 2 E. & E. 592; 29 L. J. Q. B. 87; and see Meredith v. Meigh, 2 E. & B. 361.

Delivery and receipt

of the goods.

Construc tive delivery and receipt.

Where the

in the pos

at the time

of the sale.

If the buyer retains the goods for an unreasonable time. after delivery without communicating to the seller his intention to refuse them, it is evidence of his acceptance of the goods (a). Thus, where the goods were delivered at a warehouse by the order of the buyer, who saw them there and told the warehouseman that he would not take them, but made no communication of his refusal to the seller until the end of five months, it was held that there was evidence proper for a jury to consider of an acceptance (b).

The receipt of the goods imports a delivery of possession to the buyer; there is no change of possession or receipt of the goods within the statute while the seller retains his lien for the price (c). The plaintiff sold goods to the defendant which were accepted by the defendant and removed to his warehouse, but by a term of the contract of sale they were not to be removed from thence until paid for; it was held that the seller retained no lien on the goods, but had merely the personal contract of the buyer not to remove them, and therefore the receipt was complete within the statute (7).

There may be a constructive delivery and receipt of the goods without any actual change of possession, by a mere transfer of the right to which the possession is referred.

Where the possession is already in the buyer, the delivery goods are may be effected by a transfer of the right of possession to the session of buyer, as owner. Goods of the plaintiff being in the hands of the buyer the defendant for the purpose of being sold, it was agreed between them that the defendant should buy them himself; he afterwards sold them to a third party; it was held that there was evidence within the statute of a receipt and acceptance of the goods by the defendant (e). The defendant being in the occupation of a furnished house as tenant to the plaintiff, it was agreed between them that the plaintiff should sell the furniture to the defendant at a valuation; after the valua

(a) Bushel v. Wheeler, 15 Q. B.
412; Norman v. Phillips, 14 M. & W.
277.

(b) Bushel v. Wheeler, supra.
(c) Tempest v. Fitzgerald, 3 B. &
Ald. 680; Carter v. Toussaint, 5 B.

& Ald. 855; Maberley v. Sheppard, 10 Bing. 99, 101; Bill v. Bament, 9 M. & W. 36.

(d) Dodsley v. Varley, 12 A. & E.

632.

(e) Edan v. Dudfield, 1 Q. B. 302.

tion was made the defendant refused to complete the purchase, and gave the plaintiff notice to remove the furniture, but he continued tenant of the house, and continued to hold the furniture until he removed it to a broker's and gave notice to the plaintiff of the removal; the Court held that there was no evidence of acceptance by the defendant, but said "that if it appears that the conduct of a defendant in dealing with goods already in his possession is wholly inconsistent with the supposition that his former possession continues unchanged, he may properly be said to have accepted and actually received such goods under a contract so as to take the case out of the operation of the Statute of Frauds, as for instance if he sells or attempts to sell goods, or if he disposes absolutely of the whole or any part of them, or attempts to do so, or alters the nature of the property, or the like” (a).

The plaintiff being in possession of goods of the defendant under a contract of hiring, it was agreed without writing that the plaintiff might purchase them if he pleased at the termination of the hiring, but was not to take them till the money was paid; at the expiration of the hiring the plaintiff tendered the price, but the defendant refused it and denied the validity of the bargain, whereupon the plaintiff claimed the goods and proceeded to take them as his own under the sale; it was held that there was no delivery and receipt within the statute, because the assumption of possession by the plaintiff was wrongful and without the consent of the defendant (b).

goods re

of the

Where the goods remain in the actual possession of the Where the seller, the delivery may take place by a transfer of the right main in the of possession to the buyer, and by the seller consenting to possession hold them as his agent. The defendant purchased some horses seller. of the plaintiff, and requested the plaintiff to keep them for him at livery, which the plaintiff acceded to and so kept them for him; it was held that there was a delivery and receipt sufficient to satisfy the statute (c). A complete bargain having been made for the sale of a horse, the seller, before delivering the horse, asked the buyer to lend him the

(a) Lillywhite v. Devereux, 15 M. 765. W. 285.

(b) Taylor v. Wakefield, 6 E. & B.

(c) Elmore v. Stone, 1 Taunt.

458.

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