price, and the absence of any fact showing the abandonment of such lien, will, in general, lead to the conclusion that there has been no sufficient acceptance to satisfy the act (b).

it

A. agreed to purchase a horse from B., for ready money, and to take him within a time agreed upon. 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 away and pay the price, to which B. assented. The horse died before A. paid the price, or took it away. The court held that there was no sufficient acceptance of the horse to render the vendee liable for the price; on the ground that the payment of the price was to be an act concurrent with the delivery of the horse; that the defendant had no property in the horse till the price was paid, and till then could not exercise any act of ownership, so as to change the property, which consequently remained in the vendor (c).

The case of Jordan v. Norton (d) has already been considered. The statute requires that the purchaser shall "actually receive" the goods; and although goods are forwarded to him by a carrier, &c. (e), by his direction, or delivered abroad on board a ship chartered by him (f), still there is no actual acceptance to satisfy the act, so long as the buyer continues to have a right to object either to the quantum or quality of the goods.

Thus, in Kent v. Huskinson (g), where A. having sent to B. a bale of sponge, under a verbal order from the latter, and B. returned the goods, and at the same time wrote a letter to A., stating that he disapproved thereof; the court held that B. had not accepted the goods.

In the case of a contract for the manufacture of an article (as building a waggon), the defendant's employing and paying a third person to assist the plaintiff in the work whilst on the plaintiff's premises, do not amount to an acceptance of the article, it being afterwards completed by the plaintiff, but not received by

(b) See Phillips v. Bistolli, 2 B. & C. 511, 514; 3 D. & R. 822, S. C.; Hawes v. Watson, 2 B. & C. 540; 4 D. & R. 22, S. C.; Baldey v. Parker, 2 B. & C. 44; Maberley v. Sheppard, 10 Bing. 101, 102, per Tindal, C. J.

(c) Tempest v. Fitzgerald, 3 B. &

Ald. 680.

(d) Jordan v. Norton, 4 Mee. & W.

155; ante, 11, 12.

(e) In general the delivery to a carrier is a delivery to the consignee, but the acceptance of the carrier is no acceptance by the vendee; see per Parke, B. in Johnson v. Dodgson, 2 M. &W.656. (f) Acebal v. Levy, 10 Bing. 376. (g) 3 B. & P. 233.

the defendant (h); though we have seen that where a contract provides for the advance of money during the progress of manufacture, and such advances are regulated by the work done, the property in the portion done at the time of the advance may be vested in the purchaser (i).

The same principle was acted upon in the following cases:A 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. The agent on his return home measured and set apart the twelve bushels. It was held that this did not constitute an acceptance by the vendee, so as to take the case out of the statute (k).

A., a merchant in London, had been in the habit of selling goods to B., resident in the country, and of delivering them to a wharfinger in London, to be forwarded to B. by the first ship. In pursuance of a parol order from B., goods were delivered to, and accepted by, the wharfinger, to be forwarded in the usual manner. The ship containing the goods was lost. It was decided that this was no acceptance by the buyer (1).

In Nicholle v. Plume (m), the goods having been verbally ordered, were sent by a waggon to the defendant, who refused to take them in, but caused them to be lodged in a warehouse near his premises, but not belonging to him. The goods were neither returned, nor was any notice given by defendant that he would not accept them. Best, C. J., held that there were no delivery and acceptance to satisfy the statute.

The defendant's acts, in selecting and cutting goods (linendrapery) from a larger bulk, measuring and marking them, and ordering a bill of parcels to be sent with the goods, do not constitute a sufficient delivery and acceptance (n).

And it seems, that the marking casks of wine, sold by parol, and lying at the London Docks, with the initials of the purchaser, at his request and in his presence, cannot be considered a sufficient acceptance within the statute; at least if the time of pay

(h) Maberley v. Sheppard, 10 Bing. 99; ante, 383; Laidler v. Burlinson, 2 M. & W. 602.

(i) Ante, 379.

(k) Howe v. Palmer, 3 B. & Al. 321. (1) Hanson v. Armitage, 5 B. & Ald.

557; 1 D. & R. 128. Qy. as to the case of Hart v. Sattley, 3 Camp. 528. (m) 1 C. & P. 272.

(n) Baldey v. Parker, 2 B. & C. 37; 3 D. & R. 220, S. C.

ment had not, when the casks were so marked, been fixed, so that the contract was then incomplete (o). And at all events the marking goods with the name of the purchaser, by his consent, will not constitute an acceptance within the act, if it be not evident that the name was affixed with intent to denote that the vendee had purchased the article, and had appropriated it to his own use, and it should seem even then it would be no acceptance (p).

And it should seem that the using more than is absolutely necessary for the purpose of trying experiments, and ascertaining if the goods are according to order, does not amount to an acceptance within the statute (g).

Goods of the value of 1447. were made to order, and remained in the possession of the vendor, at the request of the vendee, with the exception of a small part, which the latter took away. It was held, that there was no acceptance of the residue within the statute (r).

Nor will the removal of goods, in the vendor's own boat, to another warehouse of his own or his agent's, on a stage towards the defendant's residence, by the direction of the latter, amount to a sufficient delivery (s).

And where goods were knocked down to a bidder at an auction, and were handed to him, and remained in his possession for some minutes, and until he refused to take them, it was held to be a question for the jury, whether there had been a complete delivery and acceptance between the parties; it appearing that, by the conditions of sale, the vendee was to pay a deposit, and the residue of the price, before the goods were removable by him (t).

(0) Proctor v. Jones, 2 C. & P. 532. In this case the prices had been mentioned, but the time of payment was not fixed. The assertion in the text seems, however, to be correct. In

Anderson v. Scott, 1 Camp. 235, note, (cited in Boulter v. Arnott, 1 C. & M. 334,) Lord Ellenborough held, that the cutting of the pegs in the casks, by which the wine was tasted, and the marking of the plaintiff's initials on the casks by the defendant's agent, in the presence of all parties, amounted to a delivery under the statute. But this decision seems to

be doubtful.

(p) Hodgson v. Le Bret, 1 Camp. 233, cited in Boulter v. Arnott, 1 C. & M. 334, and observed upon and overruled by Parke, B. in Elliott v. Thomas, 3 M. & W. 177; and Baldey v. Parker, 2 B. & C. 37.

(q) Elliott v. Thomas, 3 M. & W.

170.

(r) Thompson v. Maceroni, 3 B. & Cr. 1; 4 D. & R. 619, S. C. (s) Anstey v. Emery, 4 M. & Selw.

262.

(t) Phillips v. Bistolli, 2 B. & C. 511; 3 D. & R. 822, S. C.

The case of Smith v. Surman (u) deserves attention. A. being the owner of trees growing on his land, verbally agreed with B., while they were standing, to sell him the timber at so much per foot; B. afterwards offered to sell the butts of the trees to a third person, and said he would convert the tops into building stuff. A. afterwards, by letter, required B. to pay for the timber which he, B., had bought of him. B. wrote a letter, in answer, stating that he had bought the timber, but that he had bought it to be sound and good, and that it was not so. It was held that there had been no part acceptance or actual receipt of the goods to satisfy the statute; inasmuch as there was nothing to show that the purchaser had divested himself of his right to object to the quality of the goods, or that the seller had lost his lien for the price.

So in Boulter v. Arnott (x), it was held that if goods are sold upon the terms that they shall be paid for on delivery, the vendor cannot sue the vendee as for goods sold and delivered, although they were packed in the vendee's boxes by his consent; they remaining throughout the transaction in the vendor's possession. The court seem to have considered that, assuming there was a sufficient acceptance by the vendee, there was not a sufficient delivery by the vendor to support the common count for goods sold and delivered.

The delivery of a sample, which is not part of the thing sold, will not take the case out of the statute; but if the sample be delivered with the intention to vest the whole, and received as part of the bulk, it then binds the contract (y). In Johnson v. Dodgson (2) bulk samples and the invoice of some hops were sent to the vendee by coach, pursuant to contract, but he returned them as not answering to the samples by which he had purchased, and the jury, in an action for the price of the hops having found that the samples did not answer the contract, it was held that there was no acceptance of the goods within the statute. If several lots be separately knocked down to a purchaser, the acceptance of one lot would not constitute an acceptance of the others, because in law there is a distinct contract as to each lot (a). But where a joint order

(u) 9 B. & C. 561; post, 400.

(r) 1 C. & M. 353.

(y) Hinde v. Whitehouse, 7 East, 558; Talver v. West, Holt, N. P R.

178.

(*) Johnson v. Dodgson, 2 M. & W.

653.

(a) Ante, 389.

is given for several classes of goods, the acceptance of one class is a part acceptance of the whole within the statute (b).

Where the contract is to deliver goods, or to supply a publication in parts or parcels at different intervals, at a certain price for each part, although the contract may be void for want of writing as regards the executory part of it, yet the prices of the parts actually received are recoverable under a count for goods sold (c).

It seems that a parol contract for the sale of goods to be delivered, and which are accordingly delivered within a year from the making of the bargain, but which by the terms of the contract are not to be paid for until the expiration of that period, is not within the fourth section of the statute of frauds, which requires that an agreement which is not to be performed within a year from the making thereof shall be in writing; because in such case, all that is to be performed on one side, namely, the delivery of the goods, is done within a year (d).

(3.) Of giving Something in Earnest, or in Part of Payment.

After earnest given upon the sale of goods, the vendor cannot sell them to another without a default in the vendee; and therefore if the vendee do not come and pay for, and take away the goods, the vendor ought to go and request him; and if he then do not come and pay for and take away the goods in a convenient time, the agreement is dissolved, and the vendor is at liberty to sell them to any other person (e). It seems, therefore, that earnest given upon a sale of goods does not absolutely alter or bind the property of the goods contracted for, but only binds the bargain (ƒ), and entitles the vendee to the goods, if not

(b) Elliott v. Thomas, 3 M. & W.

170.

(c) Mavor v. Payne, 3 Bing. 285; 11 Moore, 2, S. C. When part may be recovered under a binding entire contract, Orendale v. Wetherell, 9 B. & C. 386. In these cases, the claim is upon a quantum meruit, or valebant, and not upon the void parol contract; Earl of Falmouth v. Thomas, 1 C. & M. 89.

(d) See Boydell v. Drummond, 11 East, 152, per Lord Ellenborough;

Bracegirdle v. Heald, 1 B. & Ald. 727, per Abbott, J.; ante, 67.

(e) Per Holt, C. J., Langford v. Administratrix of Tiler, 1 Salk. 113; Bul. N. P. 50; Langford v. Administratrix of Tiler, 6 Mod. 162; Knight v. Hopper, Skin. 647; per Lord Ellenborough, Hinde v. Whitehouse, 7 East, 571; ante, 374, 375.

(f) Id., Bul. N.P. 50; sed vide Back v. Owen, 5 T. R. 409; Com. Dig. Biens, (D) 3; 2 Bla. C. 448.