Consummated contracts of sale, upon which an action can be maintained for goods sold and delivered, do not of course come within the scope and provisions of these acts of parliament. (b) But where the contract is of an executory nature, and the transfer of possession is not complete, the statutes attach, and there can be no action upon the contract either by the vendor or purchaser, unless the requirements of them have been complied with. (c)

Acceptance and receipt within the meaning of the statute.-If there has been no actual delivery of the thing sold, there can have been no acceptance and receipt of it.

A hogshead of wine in the warehouse of the London Dock Company was sold for 137., and a delivery order was handed to the purchaser, but was never presented by him at the docks, nor recognized by the dockkeeper, and it was held that the acceptance by the purchaser of the order was not an acceptance of the wine. "There could not have been," observes Abbott, C. J., " any actual acceptance of the wine by the vendee, until the Dock Company had accepted the seller's delivery order, and by so doing assented to hold the wine as the agents of the buyer It has been said that the delivery order in this case was a symbol of property, and constituted an actual delivery of the goods, like the key of a warehouse, as put by Lord Kenyon; but, as it appears to me, they are mainly different; for the key at once gives the holder the actual access to, and possession of the goods, whereas the delivery order was wholly useless, until it was accepted by persons who might by possibility refuse to accept it." (d)

As long as the vendor retains his right of lien for the price over the whole commodity sold, there has been no such acceptance and receipt as the statute requires." (e)

The defendant, whilst on a visit at the plaintiff's house, agreed to purchase a horse of him at the price of forty-five guineas, and to fetch it. away on the 22d of September, as he went to Doncaster races. The defendant quitted the plaintiff's house soon after the bargain had been made, and returned again on the 20th of September. The horse was then taken out of the stable by his orders, and was mounted, galloped, and leaped both by himself and servant; it was afterwards cleaned by the latter, and the defendant gave directions that a roller should be taken off, and a fresh one put on, and that a strap should be put round the neck,

(b) Searle v. Keeves, 2 Esp. 598.

(c) Alexander v. Komber, 1 H. Bl. 21.

(d) Bentall v. Burn, 5 D. & R. 284; 3 B. &

C. 423, s. c.

(e) Maberley v. Sheppard, 3 M. & Sc. 442.

which was consequently done; and the defendant then asked the plaintiff's son if he would keep the horse another week, which he said he would do, to oblige him. The defendant returned on the 27th to take the animal away, but found that it had died on the preceding day, whereupon he refused to pay the price; and it was held that there had been no acceptance of the horse within the meaning of the statute of frauds. "It is said," observed Holroyd, J., " that the riding of the horse by the defendant on the 20th of September, and the directions then given, were evidence of acts of ownership, and were therefore evidence of an acceptance of the horse; but at that time the defendant had no right to take away the horse. There is no evidence to show that the plaintiff had ever parted with the possession or control; and if he had not, he had a lien for the price, and the defendant could not be justified in taking the horse away until the price had been paid." "The acts, therefore, also," observes Best, J., " done on the 20th of September, could not be acts of ownership, for at that time the defendant had acquired no right to exercise any act of ownership. (ƒ) So, where an oral contract was made for the sale of a horse for 301., and the animal was fired in the presence, and with the approbation, of the purchaser; and it was then agreed that it should be kept by the vendor for twenty days, without any charge being made for the keep, and at the expiration of that time it was, by the defendant's directions, taken by the vendor's servant to Kimpton Park, to be turned out to grass there, and was there entered, by the defendant's desire, in the vendor's name, as the defendant did not wish it to be known that he kept a racehorse; it was held, that there was no acceptance of the horse within the statute. (g)

.

The defendant ordered the plaintiff, who was a wheelwright, to make him a waggon, and whilst it was in progress of construction, the defendant employed and paid a smith to furnish and affix certain iron-work thereon, and also a tilt-maker to put on a tilt, but the waggon still remained on the premises of the plaintiff, and it was contended that the exercise of these acts of ownership by the defendant over the waggon, amounted to an acceptance of it within the meaning of the statute; but it was held, that as the acts relied on were performed before the waggon was finished and capable of delivery, and the waggon afterwards remained on the plaintiff's premises to be finished by him, and the latter retained his lien upon it for the price, the requisites of the statute had not been complied with. (h)

(f) Tempest v. Fitzgerald, 3 B. & Ald. 684,

685.

(g) Carter v. Toussaint, 5 B. & Ald. 855.

(h) Maberley v. Sheppard, M. & Sc. 436; 10 Bing. 99, s. c.

The owner of a coppice had given orders for some ash trees to be felled, and whilst they were being cut down, the defendant came to the coppice and agreed to purchase the timber at so much a foot. The trees were marked and numbered, and the defendant gave some directions to the workmen as to the mode in which they were to be cut. The timber was subsequently measured, and the measurement communicated to the defendant, who then offered to sell the butts of the trees, which he alleged he had also bought of the plaintiff, and declared it to be his intention to convert the tops into building stuff. The defendant, however, afterwards refused to remove the timber and pay the price, and it was held that there had been no acceptance and receipt of it by the defendant within the meaning of the statute. (i) There was no actual transfer of the possession of the timber, or any part thereof, and the vendor, consequently, had not lost his right of lien over the whole commodity sold.

The defendant gave a verbal order to the agent of the plaintiff for a quantity of goods, at a stipulated price, to be paid for on delivery. On receiving notice of the arrival of the goods at the agent's warehouse, the defendant went there and ordered a boy, whom he saw there, to put a certain mark on the goods, and to send them to the St. Katharine's docks. The next day an invoice was delivered to the defendant, charging the articles at 12s. each, and the defendant then repudiated the contract, and refused to pay the price, alleging that he had understood that the articles were to be 12s. a dozen; and it was held that there had been no acceptance and receipt within the meaning of the statute. "To take the case out of the 17th section of the act," observes Parke, B.,

"there must be both delivery and acceptance, and to constitute a delivery, the possession must have been parted with by the owner, so as to deprive him of the right of lien." . . . "The acceptance," also observes Lord Abinger, "to be effectual under the statute, should be such as to divest the property in the goods out of the seller. Here the defendant probably meant to accept them, and to make Harvey his agent for shipping them. But the latter was at liberty to say that he would not deliver to or ship for the defendant until the goods were paid for. Therefore, for want of a delivery, there is no sufficient acceptance of these goods. (k)

So long, also, as the buyer continues to have a right to object either to the quantum or the quality of the goods, there has been no acceptance and receipt within the meaning of the statute.

An oral agreement was entered into at a market between the plaintiff

(i) Smith v. Surman, 9 B. & C. 561, 577; 4 (k) Bill v. Bament, 9 M. & W. 40, 41. M. & R. 455, 470.

and the defendant, for the purchase by the latter of twelve bushels of tares, at 17. per bushel, the defendant to send to the plaintiff's farm to fetch them away. A sample of the tares had been offered the defendant, but he declined taking it, saying that he had seen the tares on the plaintiff's premises, and he requested, as he had no immediate use for them, that they might remain there until he wanted to sow them, which was agreed to. The plaintiff on his return home caused the twelve bushels of tares to be measured out and set apart in his granary, and gave orders that they should be delivered to the defendant when he sent for them, but the defendant never sent, and, the action being brought for the price of the tares, it was held that as the defendant, if he had gone to the granary, would have had a right to object to the quality of the tares, if they were found on inspection not to correspond with the description given of them, there was no acceptance and receipt by the buyer within the meaning of the statute. (7) The acceptance and receipt of a carrier or wharfinger, appointed by the purchaser to be the vehicle of transmission to him, are not the acceptance and receipt of the purchaser himself.

Longstaff, a cornfactor, made an oral sale on the 1st of November, of a quantity of barley, the property of the plaintiff, to the defendant, at the price of 388. per quarter, to be delivered at Derby. The barley at the time of the sale was in the hands of Turner, for the purpose of being kiln-dried, and Longstaff having a warehouse at Derby, it was agreed that it should be delivered at such warehouse, and be sent by the first of Longstaff's boats, which went from Nottingham to Derby. The 388. per quarter was a higher price, on account of the delivery having to be made at Longstaff's expense. The defendant went to Turner, told him he had bought the barley, and desired him to see it measured and delivered and put up properly. Two or three days afterwards, the barley was sent by Longstaff's first boat, and on the 26th of November, Longstaff's clerk saw the defendant at Derby, and delivered him the invoice, and the defendant took it, and requested a week longer to pay the money, which was allowed him. On the same day, however, he gave notice that he would not accept the barley, and it was held, that the defendant's having directed the mode of conveyance, and pointed out the particular boat, and employed Turner to look to its delivery on board the boat, did not amount to an acceptance on his part. (m)

An oral order was given by the defendant, a grocer in Yorkshire, to the plaintiffs, who were wholesale tea-dealers in London, for two chests of tea,

(1) Howe v. Palmer, 3 B. & Ald. 321. Acebal (m) Astey v. Emery, 4 M. & S. 262. v. Levy, 4 M. & Sc. 229.

to be sent by the usual conveyance. The tea was accordingly sent to Hanson's wharf, to be forwarded to the defendant, and was there received and duly shipped, but the vessel was lost on the passage, and it was held that there was no acceptance by the defendant within the meaning of the statute. (n) And even if a purchaser sends his own servant for goods, and after they have been brought to him, sends them back as not answering the description, there is no acceptance, although the goods may in point of fact correspond with the terms of the bargain. (0)

The plaintiff, who was a cider manufacturer, sent a quantity of cider by the carrier's waggon to the defendant, pursuant to an oral order given by the latter; the cider was proved to be good cider for the price, nevertheless, the defendant on its arrival refused to take it in, and caused it to be lodged in an adjoining warehouse, the property of a third party; no notice was ever sent to the plaintiff of the defendant's refusal to take the cider, and the former brought his action for the price of it; but it was held that there had been no acceptance, and the sale, consequently, was void by the statute. (p)

Neither is the delivery of the goods into the hands of the intended purchaser sufficient, if it appears that the latter has taken them and had them in his possession for no greater time than would reasonably suffice for him to examine the quantity and quality of the goods, and declare his approval or disapproval thereof, and consequent final acceptance or non-acceptance of the article.

A retail vendor of sponge gave an oral order to a wholesale dealer in London for a bale of sponge, to be sent to him in the country, the price of which amounted to 751. The sponge was returned, accompanied by a letter from the intended purchaser, saying he had sent it back, as he did not think it worth the price charged, and it was held that there had been no acceptance and receipt of the article within the meaning of the statute. "The evidence," observes Lord Alvanley, C. J., "does not take this case out of the statute of frauds. How is any judgment to be formed of the nature of the contract between these parties? Possibly the order was for the best, possibly for the second-best sponge, or sponge of some peculiar quality; all which circumstances are left in a state of uncertainty. It was this very uncertainty, and the frauds to which it might lead, that the statute had in contemplation and meant to guard against. The only affirmance of any contract to be collected from the evidence, is an affirmance of some

(n) Hanson v. Armitage, 5 B. & Ald. 557; 1 D. & R. 128, s. c.

(∞) Lord Abinger, C. B., Johnson v. Dodgson,

2 M. & W. 656.

(p) Nichol v. Plume, 1 C. & P. 272.