PART I. Where the goods are in the buyer. transferred;-where the possession remains in a third party, and the right is transferred. Where the goods are already in the possession of the buyer in possession of right of the seller, a constructive delivery and receipt may be effected by the parties consenting to a change of the possession to the buyer in his own right. "If it appears that the conduct of a person 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 the goods, or if he disposes absolutely of the whole or of any part of them, or attempts to do so, or alters the nature of the property, or the like" (z). Thus, where the goods were in the possession of a person as agent for sale, and it was verbally agreed between him and the owner that he should buy them himself, and he thereupon resold them to a third party; it was held that there was sufficient evidence of an acceptance and receipt to charge him as the buyer (a). Where, on the other hand, a person in the possession of a house and furniture as tenant agreed with the owner of the furniture to buy it at a valuation, but upon the valuation being made refused to pay it, and gave notice to the owner to remove the furniture; it was held that there was no evidence of an acceptance and receipt (b). Where the seller. A constructive delivery and receipt may also take place where goods remain the goods remain in the actual possession of the seller, by a in the possession of the transfer of the right of possession with the consent of both parties. In each case the question to be determined is whether the possession which actually remains in the seller is a possession in the seller by virtue of his original property in the goods, or whether it has become a possession as agent or bailee of the buyer, and for the determination of this question the existence of a seller's lien affords a convenient test (c). Where a person bought horses of a livery stable keeper and requested him to keep them at livery, which he assented to and charged the buyer with the keep; it was held that there was an effectual change of possession and an (z) Per cur. Lillywhite v. Devereux, 15 (a) Edan v. Dudfield, 1 Q. B. 302. (c) Howe v. Palmer, 3 B. & Ald. 321; Carter v. Toussaint, 5 B. & Ald. 855; Marvin v. Wallis, 6 E. & B. 726; 25 L. J. Q. B. 369; Castle v. Sworder, 6 H. & N. 828; 30 L. J. Q. B. 312. FORMS REQUIRED BY STATUTE. acceptance and receipt by the buyer (d). Where a person having sold a horse requested the buyer to lend it to him for a journey, which the buyer assented to; it was held to be an acceptance and receipt of the horse within the statute; for the lending of the horse operated a change of the possession (e). So where a person bought a carriage and requested the seller to keep it for him, which he consented to do, the buyer using it when he required (ƒ). A merchant who also kept a bonded warehouse having sold some casks of spirits upon credit, to lie in bond until wanted, sent an invoice to the buyer specifying the casks and entered them in his books as sold to the buyer, by which entry he was precluded from removing them out of bond; it was held that there was evidence of an acceptance and receipt (g). Upon the sale of a stack of hay standing upon the seller's land, the resale of part by the buyer and the removal of that part, was held to be evidence of an acceptance and receipt of the whole (h); but a mere attempt to resell without any delivery seems not to be sufficient (i). Where trees standing on the seller's land were sold as timber for immediate removal, and the buyer cut down some and sold the top and lop, it was held there was a sufficient acceptance and receipt, though there was no actual removal from the land (k). CH. V. SECT. II. constructive On the other hand, it was held in the following cases that there Insufficient was no evidence of acceptance and receipt:-Where a person receipt. bought a horse and requested the seller to keep it for him and put it out to grass, and the seller put it out in his own name (7); where a person ordered a waggon to be built for him, and while it was in progress upon the builder's premises employed a workman of his own to fix on the ironwork and a tilt with his own materials (m); where a person bought several articles at a shop, some of which he marked and some were measured and cut off larger pieces in his presence, but upon the goods being sent to him he refused to receive them (n). Where a person bought a certain quantity of tares out of a larger bulk which he had before seen and approved, to remain in the seller's possession until wanted; and the seller afterwards measured out the quantity and set them apart with (d) Elmore v. Stone, 1 Taunt. 458. (e) Marvin v. Wallace, 6 E. & B. 726; 25 L. J. Q. B. 369. (f) Beaumont v. Brengeri, 5 C. B. 301. (g) Castle v. Sworder, 6 H. & N. 828; 30 L. J. Ex. 310. (h) Chaplin v. Rogers, 1 East, 192. (i) See Blenkinsop v. Clayton, 7 Taunt. (k) Marshall v. Green, 1 C. P. D. 35; (m) Maberley v. Sheppard, 10 Bing. 99. L. PART I. Seller's lien for price. Where the goods are in possession of an agent. Delivery order. Acceptance and receipt of part of goods sold. orders that they should be delivered to the buyer when called for; the buyer not having assented to such specific appropriation, it was held that there was no delivery and receipt (0).—Where a horse was sold for a ready money price and the buyer used it, but requested the seller to keep it for a time when he would fetch it away; it was held that the seller retained his lien and that there was no delivery (p). Upon a sale upon credit for immediate delivery, though the goods may remain in the actual possession of the seller, there is no lien whilst the credit lasts; but a right of lien arises upon the insolvency of the buyer, analogous to the right of stoppage in transitu in the case of goods delivered to a carrier (9). Where the goods at the time of the sale are in the possession of a bailee or agent of the owner, a constructive delivery and receipt may be effected by all the parties, namely, the seller, the buyer, and the actual possessor consenting that the right of possession shall be transferred, and that the actual possession shall be held no longer for the seller but for the buyer. But except in those cases in which the right to the goods has been transferred by a document of title, such as a bill of lading, the acknowledgment of the bailee or agent to the buyer that he holds the goods on his behalf is necessary (). A mere delivery order given by the seller to the buyer is no receipt by the latter until communicated to the agent and accepted by him as transferring the possession; nor is a mere delivery order given by the seller to the agent, until communicated by the latter to the buyer ($). And a warrant given by a warehouseman or wharfinger to the owner of goods, undertaking to deliver the goods to him or his assignee, which the owner on selling the goods assigns to the buyer, is no receipt by the latter, until the holder of the goods has notice of the assignment and agrees with the buyer to hold for him as owner (†). Acceptance and receipt of part of the goods sold is sufficient to except the sale from the operation of the statute; and a sample of (0) Howe v. Palmer, 3 B. & Ald. 321. (p) Tempest v. Fitzgerald, 3 B. & Ald. 680. (4) Sale of Goods Act, 1893, s. 41; Bloxam v. Sanders, 4 B. & C. 949; Townley v. Crump, 4 A. & E. 58; 5 L. J. K. B. 14; Miles v. Gorton, 2 C. & M. 504; Grice v. Richardson, 3 Ap. Ca. 319; 47 L. J. P. C. 48. () Sale of Goods Act, 1893, s. 29 (3). See Ex p. Barrow, 6 C. D. 783; 46 L. J. B. 73; Grigg v. National Ass., (1891) 3 Ch. 206; 61 L. J. C. 11. (s) Bentall v. Burn, 3 B. & C. 423. (t) Farina v. Home, 16 M. & W. 119; 16 L. J. Ex. 73. CH. V. SECT. II. goods under the goods is sufficient, if it be delivered and accepted as part of the bulk (); but the presumption is that a sample is merely a specimen of the goods contracted to be delivered, and not part of the bulk (x).—A contemporaneous purchase and sale of several Acceptance of articles is, according to the circumstances, to be regarded as one several contract or several contracts (). Where the transaction is to be contracts. regarded as involving but one contract, the acceptance and receipt of one article or of one parcel or kind of the goods is sufficient to take the whole contract out of the statute (≈); but where four pockets of hops were sold at the same time at a price per hundredweight agreed upon in consideration of taking the whole, two of which were accepted on the spot and the other two were reserved for future delivery according to sample; the purchaser was held to be entitled to refuse the remaining two pockets (a). A contract having been verbally made for the sale of a mare for 207., but upon the terms that if the mare should prove to be in foal the buyer would on receiving 127. from the seller return it on request; it was held to be one entire contract, and not separate contracts of sale and resale, and that the acceptance and receipt of the mare took the whole contract out of the statute (b). The 17th section of the Statute of Frauds excepted, and the Earnest or substituted sect. 4 of the Sale of Goods Act, 1893, also excepts part payment. from its operation the cases in which "the seller shall give something in earnest to bind the bargain or in part payment." Earnest and part payment, it is said, are two distinct things; but earnest may also avail as part payment. Earnest is lost if the party fails to perform the contract, and is presumptively brought into account as payment if he performs it (c). A mode of striking a bargain said to be customary in places, by the buyer drawing a shilling across the hand of the seller, was held not to take the case out of the statute, as it does not amount to giving anything even for a moment (d). (u) Hinde v. Whitehouse, 7 East, 558; Gilliat v. Roberts, 19 L. J. Ex. 410; Gardner v. Grout, 2 C. B. N. S. 340. (x) Cooper v. Elston, 7 T. R. 14. (y) See ante, p. 173. (z) Elliott v. Thomas, 3 M. & W. 170; 7 L. J. Ex. 129; Bigg v. Whisking, 14 C. B. 195; Scott v. Eastern Counties Ry., 12 M. & W. 33; 13 L. J. Ex. 14. (a) Jenner v. Smith, L. R. 4 C. P. 270. (b) Williams v. Burgess, 10 A. & E. 499; 8 L. J. Q. B. 286. (c) Fry, L. J., Howe v. Smith, 27 C. D. 102; 53 L. J. C. 1055. (d) Blenkinsop v. Clayton, 7 Taunt. 597; 1 Moo. 328. PART I. The part payment contemplated is something apart from the Part payment. contract itself, and in affirmance of it. Thus where goods were sold upon the terms that a debt due from the seller to the buyer should be set off as part payment of the price, and when the goods were sent the buyer refused to receive them; it was held that, the discharge of the debt resting only in agreement until completion of the contract, there was no part payment within the statute (e). The completion of such an agreement by delivery and receipt of the goods would operate effectually in discharge of the debt, and might be proved for that purpose, although the agreement was within the statute and could not have been enforced (f). Statute operates SECT. III.-OPERATION OF THE STATUTE OF FRAUDS, AND SALE PAGE 196 The statute operates upon the evidence-foreign contracts- ......... Operation of the statute in equity-where possession of land Effect of part performance-payment of purchase-money 199 201 202 203 The enactment by the 4th section of the Sale of Goods Act, 1893, that the contracts there mentioned "shall not be enforceable by action," merely gives legislative sanction to the decisions on the 17th section of the Statute of Frauds that no contract within its description "shall be allowed to be good." The operation of the statute upon the contract was held to be the same under the 4th and 17th sections of the Statute of Frauds. "It is now finally settled that the true construction of the Statute of Frauds, (e) Walker v. Nussey, 16 M. & W. 302; 16 L. J. Ex. 120; Norton v. Davison, (1899) 1 Q. B. 401; 68 L. J. Q. B. 265. (f) Lavery v. Turley, 6 H. & N. 239; 30 L. J. Ex. 49. See post, p. 199. |