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his retention of the goods, after due trial, is evidence of acceptance to pass title.1

§ 2. To satisfy the Statute of Frauds.

125. The foregoing rules have been modified by the Statute of Frauds. Under its provisions, a contract, whether it be a bargain and sale or an agreement to sell, is not enforceable, in the absence of part payment, earnest, or a written memorandum, if the goods exceed a specified sum, unless the buyer accepts and actually receives a part of them.2

126. Acceptance.- - The courts have experienced much difficulty in defining this statutory term, and in many judicial opinions it is confounded with actual receipt. But the two are quite distinct. There may be an acceptance without a receipt, or a receipt without an acceptance. The statute requires both. It also requires the fact of acceptance as well as the fact of actual receipt to be established by proof of acts of the buyer, over and above the words of his oral sale contract.5

court ignored the distinction between acceptance to pass title and acceptance under the Statute of Frauds.

1 Frey-Sheckler Co. v. Iowa Brick Co., 104 Ia. 494; 73 N. W. 1051 (1898). 2 Beedy v. Brayman Wooden Ware Co., 108 Me. 200; 79 At. 721 (1911). The court states the distinction between acceptance and receipt under the statute and at common law as follows: "[1] There may be a complete delivery at common law without either receipt or acceptance under the statute. [2] The former is the act of the vendor; while receipt, which affects the possession, and acceptance, which affects the title, are the acts of the purchaser, and both receipt and acceptance are essential. Nor can such receipt and acceptance be shown by words alone, where such words are part of the alleged oral bargain and sale."

3 Marvin v. Wallis, 6 El. & Bl. 726 (1856); Burdick's Cases on Sales, 217. "I believe that the party who inserted the words had no idea what he meant by 'acceptance.' Erle, J., at p. 734.

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4 Chaplin v. Rogers, 1 East, 192 (1800); Burdick's Cases on Sales, 214, Lord Kenyon's opinion; Shindler v. Houston, 1 N. Y. 261 (1848). Wright, J., speaks of "the act of accepting and receiving required to dispense with a note;" apparently treating acceptance and receipt as inseparable. Denny v. Williams, 5 Allen (87 Mass.), 1. "Superadded to the language of the contract, there must be some act of the parties amounting to a transfer of the possession, and an acceptance thereof by the buyer." Chapman, J., at p. 3.

5 Cases in the last two notes; Gorman v. Brossord, 120 Mich. 611; 79 N. W. 903 (1899); Devine v. Warner, 75 Conn. 375; 53 At. 782; 96 Am. St. R. 211 (1903).

127. Statute requires more than Evidence of a Bargain. Even in the case of a bargain and sale of specific goods, the statutory acceptance is not made out by evidence that the seller orally offered a particular deliverable chattel for a specified price to the buyer, and that the latter orally accepted the offer.1 Some additional act of the buyer must be shown, from which a jury, if the evidence is conflicting, or a court, if it is not, may find that he assented to the seller's proposal that certain goods should be part of the goods sold.2 The buyer does such an act when he directs goods, which he has inspected and approved, to be shipped to a designated place,3 or by a specified carrier, or takes into his possession and keeps a part or the whole of such goods, or exercises an act of ownership over them, such as ordering a carriage out for a drive, or reselling a stack of

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1 A different view has been expressed by eminent writers. It is said in Langdell's Cases on Sales (p. 1021): "If the contract be for specified goods, the acceptance takes place at the time of the bargain, and the same evidence which proves the bargain will also prove an acceptance." See Browne on the Statute of Frauds, § 321 a (5th ed.). Each writer cites Cusack v. Robinson, 1 B. & S. 299; 30 L. J. Q. B. 261, as the principal authority for this proposition. But Blackburn, J., is careful to state: "There was also sufficient evidence that the defendant had at Liverpool selected these specific 156 firkins of butter as those which he then agreed to take as his property as the goods sold, and that he directed those specific firkins to be sent to London." This direction was in writing and was subsequent to the agreement. In the same opinion attention was called to the fact that in Marvin v. Wallis, 6 El. & Bl. 726, and Beaumont v. Brengeri, 5 C. B. 301, "the specific chattel sold was ascertained, and there appear to have been acts indicating acceptance, subsequent to the agreement, which changed the nature of the possession."

2 Law Quar. Rev., vol. i, 14; Burdick's Cases on Sales, 757.

3 Cusack v. Robinson, 1 B. & S. 299 (1861); Burdick's Cases on Sales, 219.

Cross v. O'Donnell, 44 N. Y. 661 (1871).

5 Vincent v. Germond, 11 Johns. 283 (1814); Burdick's Cases on Sales, 222; Gray v. Peterson, 64 Neb. 671; 90 N. W. 559 (1902); Standard Wall Paper Co. v. Towns, 72 N. H. 324; 56 At. 744 (1903); defendant kept the goods two weeks and then returned them because he could do better: held to be some evidence of acceptance.

Pinkham v. Mattox, 53 N. H. 600, 606 (1873). Even though he has the option to reject them, his conduct in retaining them an unreasonable time imports acceptance, and is acceptance in law. Hobbs v. Massasoit Co., 158 Mass. 194, 197; 33 N. E. 495 (1893).

7 Beaumont v. Brengeri, 5 C. B. 301 (1847); Burdick's Cases on Sales,

hay,' or paying freight on the goods, opening the boxes in which they are shipped, taking a part therefrom and executing a chattel mortgage on the goods.

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128. Acceptance to satisfy the Statute need not be Final. In England, an act of the buyer may satisfy the statutory requirement of acceptance without amounting to an acceptance in performance of the contract.3 "Having regard to the mischiefs at which the statute was aimed, it would appear a natural conclusion that the acceptance contemplated by the statute was such a dealing with the goods as amounts to a recognition of the contract, e. g., comparing the bulk with the sample. This view is not generally entertained in the United States. On the other hand, it is held that the statutory acceptance is an ultimate acceptance which precludes the buyer from taking any objection to the quantity or quality of the goods sold and received; 5 "though it does not preclude the purchaser from refusing to accept the residue of the goods, if it clearly appears that they do not conform to the contract." And such is the rule formulated in the Uniform Sales Act.7

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129. Actual Receipt. The courts are agreed that the question whether the buyer has actually received a part of the goods is one of fact; and that the question whether the evidence warrants a finding of actual receipt is one of law. Nor have they any difficulty in dealing with a case, where the buyer has taken

1 Chaplin v. Rogers, 1 East, 192 (1800); Burdick's Cases on Sales, 214; Beedy v. Brayman Wooden Ware Co., 108 Me. 200; 79 At. 721 (1911). 2 Wyler v. Rothschild, 53 Neb. 566; 74 N. W. 41 (1898). Sale of Goods Act, § 4 (3).

Bowen, L. J., in Page v. Morgan, 15 Q. B. D. 228 (1885); Burdick's Cases on Sales, 223; Remick v. Sanford, 120 Mass. 309, 316 (1876).

Stone v. Browning, 51 N. Y. 211 (1872); 68 N. Y. 598 (1877); Burdick's Cases on Sales, 226; Hewes v. Jordan, 39 Md. 472 (1873); Corbett v. Wolford, 84 Md. 426; 35 At. 1088 (1896); Burdick's Cases on Sales, 230; Harrison v. Scott, 203 N. Y. 369; 96 N. E. 755 (1911).

Clifford, J., in Garfield v. Paris, 96 U. S. at p. 563 (1877).

7 Mass. L. 1908, ch. 237, § 4 (3). "There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods."

8 Hinchman v. Lincoln, 124 U. S. 38 (1887); Burdick's Cases on Sales.

a part of the goods into his physical possession as his property. Often, however, the goods are not removed by the purchaser, and yet the parties clearly intend that both title and possession shall pass immediately. In order to satisfy the statutory requirement of actual receipt, in such cases, some act of the buyer must be shown, in addition to his oral contract, even where this purports to effect a present sale of a specific chattel.

130. What Act amounts to a Receipt. — Any dealing with the goods by the purchaser as owner with the seller's assent is such an act.1 So is a subsequent oral agreement between the parties, that the seller shall thereafter hold the goods as the buyer's bailee; 2 provided it is clearly established that the seller intends to divest himself of his lien for the purchase price.3 In a few jurisdictions it has been held that "receipt and acceptance must be evidenced by some act of the parties, and that no mere words, however significant, are sufficient." 4

If the buyer has possession of the goods, when the sale contract is made, any subsequent dealing with them by him as owner satisfies the statute. In case they are in the possession

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1 Marshall v. Green, 1 C. P. D. 35 (1875), (cutting trees and selling tops and stumps); Burdick's Cases on Sales, 42; Becker v. Holm, 89 Wis. 86, 92; 61 N. W. 307 (1894), (taking a steamboat out of the river and preparing it for shipment by rail).

2 Marvin v. Wallis, 6 El. & Bl. 726 (1856); Burdick's Cases on Sales, 217; Webster v. Anderson, 42 Mich. 554 (1880).

Holmes v. Hoskin, 9 Exch. 753 (1854); Burdick's Cases on Sales, 231; Young v. Blaisdell, 60 Me. 272 (1872); Safford v. McDonough, 120 Mass. 290 (1875); Burdick's Cases on Sales, 233; Devine v. Warner, 76 Conn. 229, 232; 56 At. 563 (1903).

4 Kirby v. Johnson, 22 Mo. 354, 355 (1856); Malone v. Plato, 22 Cal. 103 (1863); Bowers v. Anderson, 49 Ga. 143 (1873). In the first two of the cases cited, it was clear that the seller's lien was not divested, and the decisions may be sustained on that ground. The third case seems to have been wrongly decided, even under the foregoing rule. After the oral contract was made, the purchaser's agent offered the seller the money, but the latter requested the agent to keep it subject to the seller's check, which was done. It was also agreed that the cotton should remain in the seller's gin-houses, free of storage, until hauled away, but at the purchaser's risk; and the purchaser had the cotton insured. Surely here was ample evidence to satisfy the statute.

Edan v. Dudfield, 1 Q. B. 302; 5 Jurist, 317 (1841); Burdick's Cases on Sales, 235 (selling at a lower price than he had a right to take, unless

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of a third party, as bailee, his subsequent attornment with the seller's assent to the buyer is equivalent to actual receipt by the latter.1

131. If Goods are on the Land of a Third Party. - The proposition that if the goods are on the land of a third person, who is not bailee, or are in some public place to which the buyer and seller have equal right of access, the possession as well as title may be transferred by the mere agreement of the parties to that effect,2 is not sustained by judicial authority in cases arising under the Statute of Frauds. If, subsequent to the agreement of sale, the vendor puts "the goods at the disposal of the vendee," and suffers "the latter to take actual control of them," the statute is satisfied.3

132. Common Carrier has Implied Authority to receive, but not to accept. A common carrier to whom the seller unconditionally delivers goods for transmission to the buyer pursuant to the oral agreement, is the latter's agent to receive them,

he had become owner); Snider v. Thrall, 56 Wis. 674 (1883); Burdick's Cases on Sales, 236; Dorsey v. Pike, 50 Hun, 534 (1889); Burdick's Cases on Sales, 238; s. c. again in 32 N. Y. St. Reporter, 258 (1890). In Texas Ry. v. Beard, 68 Tex. 265 (1887), the oral contract of sale was treated as passing title, without any subsequent act by the purchaser; but this holding was not necessary to the decision.

1 Godts v. Rose, 25 L. J. C. P. 61 (1855); Townsend v. Hargraves, 118 Mass. 325, 332 (1875); Wing v. Peabody, 57 Vt. 19 (1885); Simmonds v. Humble, 13 C. B. N. s. 258 (1862); Burdick's Cases on Sales, 240; Bentnall v. Burn, 3 B. & C. 423 (1824); Burdick's Cases on Sales, 242.

2 Langdell on Sales, p. 1023, § 20. In Tansley v. Turner, 2 Bing. N. C. 151 (1835), and Cooper v. Bill, 3 H. & C. 722 (1864), cited in support of this proposition, there was a memorandum in writing which satisfied the statute, and the vendee took and retained actual control of the goods. Nor do the American cases cited in Tiffany on Sales, p. 64, sustain this view. Leonard v. Davis, 1 Black, 476 (1861), was brought on a written contract. In Thompson v. Railway Co., 28 Md. 396 (1867), the specific goods were pointed out by the vendor to the vendee, after the contract was made, "for the purpose of making delivery" thereof, and were charged in the vendor's books to the vendee by the latter under the former's directions. In Cotterill v. Stevens, 10 Wis. 422 (1860), by the terms of sale the buyer was to take the logs where he could find them, and did receive a portion of them.

3 Benjamin on Sales, § 178, and cases in the preceding note; Snow v. Terrett, 167 Mass. 457; 45 N. E. 764 (1897); Burdick's Cases on Sales,

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