to the fourth. The signature must be by the party to be charged, or his agent, (a) as in cases [*74] wharfinger, the question of delivery must depend upon the question whether such third party was appointed by the buyer; if so, delivery in the docks marked with his initials, and the terms of payment were settled at a subsequent conversation, and it was held that it was the intention of the statute that there should be as complete a delivery as could be according to the nature of the article. It could not be said in this case that the defendant actually received the goods. The vendee could not have maintained trover if the goods were not delivered, for the seller would have a lien on them for the price, as there was no stipulation as to payment at a future time. But not only was there no delivery, but there was no complete contract at the time of the marking, for at that time, the time of payment was not agreed upon. If there was no complete contract at the time of the marking, the marking could not be an acceptance within the statute, against whose express words Anderson v. Scott was said to be directly opposed, and upon Elmore v. Stone being cited, it was said by Best, Ch. J., that that case had been overruled. Then came Tempest v. Fitzgerald, 3 Barn. & Ald. 680, 5 E. C. L. R., and Carter v. Toussaint, 5 Id. 855, both cases of horses, and both very similar to Elmore v. Stone, the latter case being scarcely distinguishable from it, and it was held that there was no receipt within the statute. Then came Baldey v. Parker, 2 Barn. & Cress. 37, 9 E. C. L. R., which was very similar to Anderson v. Scott and Hodgson v. Le Brett, and was decided in opposition to those cases. Since then, the cases of Smith v. Surnam, 9 Barn. & Cress. 561, Maberly v. Shepherd, 10 Bing. 99, and Bill v. Baiment, 9 Mees. & Wels. 37; and in this country Dole v. Stimpson, 21 Pick. 387, and Shindler v. Houston, 1 Comstock, 261, 273 (reversing the judginent in 1 Denio, 48, which was decided on the authority of Chaplin v. Rogers), may be referred to as farther illustrating the disposition to carry out the words of the statute as to "actual receipt," which, as Parke, J. observed, in Smith v. Surnam, "the Court, in the older cases, did not advert to." Indeed it is evident, as was remarked in Proctor v. Jones, supra, that the Statute of Frauds, like the Statute of Limitations, was formerly looked upon with so little favour, that the judges appeared anxious to get it off the statute book. (a) It may be written anywhere, as long as it was the intent of the party that it should operate as a memorandum. Johnson v. Dodgson, supra. [*75] arising under the fourth section; but neither under the fourth nor the seventeenth sections is to such carrier or wharfinger would be delivery to the buyer. (Richardson v. Dunn, 2 Q. B. 218, 42 E. C. L. R.; Dawes v. Peck, 8 T. R. 330.)' Where the goods are sent to a third party, or a place not belonging to but customarily used by the buyer, the question must be determined by the principle we have stated, and the question whether the seller does or does not retain a power over them inconsistent with the property being in the buyer. Dodsley v. Varley, 12 A. & E. 632, 40 E. C. L. R. The delivery of a portion or sample of the goods sold will suffice where it is intended thereby to invest the buyer with the property in them. (Hinde v. Whitehouse, 7 East, 558); [Mills v. Hunt, 17 Wendell, 333, S. C. 20 Id. 441; Dawson v. Osborn, 1 Pick. 476.] In all cases the goods must be received by the buyer, or some one as his agent, to constitute delivery. Delivery implies receipt, but not acceptance. Nothing can be more distinct than the receipt and acceptance of goods; for the latter means such an acceptance as affords the purchaser reasonable time and opportunity to examine both the quality and quantity of the goods delivered; such a possession as precludes him from any longer objecting to the goods alone satisfies the statute, and dispenses with a written memorandum. There cannot, therefore, be acceptance without receipt, but there is often receipt without acceptance. See Howe v. Palmer, 3 B. & Ald. 326, 5 E. C. L. R.; Hanson v. Armitage, 5 B. & Ald. 557, 7 E. C. L. R., and Johnson v. Dodgson, 2 M. & W. 656, where Lord Abinger, C. B. puts the case thus:— "If the purchaser sent his own servant for the goods, and when they were brought, sent them back, as not answering the contract, he could not be said to accept them." (See also Maberley v. Sheppard, 10 Bing. 99, 25 E. C. L. R., and Baldey v. Parker, 2 B. & Cr. 440, 9 E. C. L. R.) Wherever the buyer has dealt with the goods as his own, either by 1 Outwater v. Dodge, 6 Wendell, 397; Snow v. Warner, 10 Metcalf, 131-138. Thus an agreement that the price of goods sold, shall be applied to a debt due from the seller to the buyer, is not sufficient to take the case out of the statute, unless the application is actually made by giving a receipt or otherwise; Clark v. Tucker, 2 Sandford's Sup. Court R. 157; Walker v. Mussey, 16 Mees. & Welsby, 302. [76] there any necessity for the agent's being appointed by writing. Under the seventeenth section, using or reselling them, he cannot afterwards repudiate the contract, and the acceptance is complete; such evidence must be unequivocal, and the question whether it is so or not, under all the circumstances, is fact for the jury rather than matter of law. Eden v. Dudfield, 1 Q. B. 302, 41 E. C. L. R.; Chapman v. Morton, 11 M. & W. 534, among the most recent decisions on this point.1 are 1 It may be here observed, that there may be an acceptance of goods within the Statute of Frauds, which may not, however, be such an acceptance as would support an action for goods sold and delivered. It is true, that in Norman v. Phillips, 14 Mees. & Welsby, 277, Alderson, B. said that acceptance and delivery under the statute, meant such an acceptance as precludes the purchaser from objecting to the quality of the goods, and such is the earnestly expressed opinion of the author of these lectures, in his work on Mercantile Law. The opinion expressed, however, in Boulter v. Arnott, 2 Crompt. & M. 333, is the other way, and the recent case of Curtis v. Pugh, 10 Queen's Bench, 111, shows that such a distinction may fairly exist. The defendant had verbally ordered three hogsheads of glue, to be of the kind called "Cox's best." The glue was sent to the warehouse of the defendant, who removed it into twenty bags, and finding it inferior in quality, at once notified the plaintiff, who refused to take it back because of the unpacking, and brought assumpsit for goods sold and delivered. The defendant asked for a nonsuit on the ground of there being no contract within the statute, he not having "accepted" the glue, and there being no memorandum in writing. Lord Denman, before whom the case was tried, was of opinion that altering the condition of the glue was an acceptance, and left it to the jury to say whether the defendant had dealt with the glue as his own, or had done no more than was necessary for its examination, and they found a verdict against the defendant on this point. But the verdict was set aside on the ground of misdirection, Lord Denman agreeing that he had gone too far, in holding that any unnecessary alteration must be taken as an acceptance, and Patterson, J. said, "A confusion sometimes arises in applying the Statute of Frauds to the case of goods sold and delivered. If the purchaser actually takes the goods sold into his possession, that is an acceptance, independent of the statute. But there may be an acceptance sufficient to satisfy the statute, which may not yet support an action for goods sold and delivered." as well as under the fourth, several documents may be read together as making up the contract, provided they The buyer may also accept by lapse of time after the receipt of the goods. It is distinctly stated in the judgment of Lord Abinger, C. B., in Chapman v. Morton, that if the buyer intends to renounce the contract, he ought to give the plaintiffs distinct notice at once that he repudiates the goods, and not prevent the sellers from dealing with them as theirs. In Richardson v. Dunn, where a smaller quantity of coals than were ordered were shipped to the purchaser in a vessel other than that named by him, and an invoice and letter were sent to him stating the facts; it was there held by the Court of Queen's Bench, that "silence for a week" on the part of the buyer was "tantamount to assent," and he was liable in assumpsit for the price of the goods. (See, also, Coleman v. Gibson, 1 M. & Rob. 168.) The same doctrine was applied in the case of Bushel v. Wheeler, 8 Jurist, 532, to acceptance under the seventeenth section of the Statute of Frauds. Where goods were placed in the warehouse of a carrier selected by the purchaser, who allowed them to remain there six or seven months, when he informed the warehouseman that he did not intend to take them; and this was held to justify the jury in finding an acceptance-a constructive, though not a manual one. Subsequently the Court of Exchequer stated a different doctrine, in the case of Norman v. Phillips, 14 M. & W. 277, where the buyer, under precisely similar circumstances, had allowed goods to remain at a station of the Great Western Railway, where he had desired them to be sent, informing the people there that he should not take them at the time, but allowing eight weeks to elapse before he apprised the seller of the repudiation. The Court held that this was an evidence on which the jury ought not to have found an acceptance, because the goods were not in the possession of the party himself, or an agent authorized by him to examine the quality of the goods, but merely of a carrier, who was an agent only for the purpose of carrying; and that he, not being an agent to accept the goods in the first instance, could not become so by lapse of time (per Alderson, B.) It is difficult to reconcile this decision with the principle established in the previous judgments. The seller had completed the delivery, for he had delivered precisely as he had been directed to do by the buyer; his lien and power of stoppage in transitu were gone (see Wilmhurst v. Bowker, in error, 7 M. & Gr. 882, 49 E. C. L. R.); he had wholly parted with his property in and control over the goods, and had appropriated them to the purchaser (see Wilkins v. Bromhead, 6 M. & be sufficiently connected in sense among themselves, Gr. 963, who had full power to examine them, and his not having done so was entirely his own act and default. If the carrier was not the party to examine, nor an agent to accept, neither was he to repudiate; and there can be little question that eight weeks' silence is an unreasonable delay, especially when an invoice of the goods had been received; and this is perfectly consistent with the law as laid down in Johnson v. Dodgson, supra. It is humbly submitted that the current of previous decisions will prevail; and that, wherever the seller has done his part in delivering the goods sold into the control or possession of the buyer, in accordance with the directions given by him, after the lapse of a reasonable time for their examination, there is an implied assent to keep them; and, if no repudiation of the contract be then made to the seller, the acceptance is complete. What is reasonable time must be always a question for the jury, having regard to the nature of the goods and the usages of trade. Any other doctrine would seriously disturb the accustomed transactions of commerce. For the remaining points relating to Delivery and Acceptance, not under the Statute of Frauds, see post, tit. Sale of Goods. Wherever different goods, or several classes of the same goods, are bought at the same time, and form one contract, acceptance of part is acceptance of the whole. [Elliot v. Thomas, 3 M. & W. 170; Williams v. Burgess, 10 Ad. & Ell. 499, 37 E. C. L. R.; Slubey v. Hayward, 2 H. Bl. 504; Parks v. Hall, 2 Pickering, 213; Mills v. Hunt, 17 Wendell, 375; S. C. 20 Id. 431.] And if a man enters into an entire and single agreement for goods made and others to be made, his accepting part of the goods made is evidence of the whole agreement and of acceptance, and will take the case out of the statutes, both as respects the goods made and those to be made. See Scott v. Eastern Counties Railway, 12 M. & W. 33, where Lord Abinger, C. B. says: "Can it be said that if a man goes to a tailor's shop and buys a suit of clothes which are ready made, and at the same time orders another suit to be made for him, and the former are sent home to and accepted by him, he is not bound to pay for the latter? The two statutes (the Statute of Frauds and the 9 Geo. 4, c. 14, s. 7) that have been referred to, must be construed as incorporated together; and then it is plain that where an order for goods made, and for others to be made, forms one entire contract, acceptance of the former goods will take the case out of the statutes as regards the latter also." It is obvious that this rule precludes the prin |