although he cannot accept them on behalf of the buyer, unless specially authorized thereto.1

133. Actual Receipt involves Mutual Assent. - Mutual assent of the seller and buyer is necessary to actual receipt. Hence a tender to the buyer of goods which he ought to receive, but which he rejects, in violation of the terms of the oral agreement, does not satisfy the statute.? On the other hand, if the seller, in violation of such agreement, refuses to deliver the goods, the buyer cannot make out a case of actual receipt by forcibly seizing them. A delivery by the seller to a third party to hold until the buyer pays the purchase price, does not amount to acceptance and receipt by the buyer.4

134. Receipt of a Part satisfies the Statute. The statute is satisfied by the acceptance and actual receipt of a part of the goods, however trifling this part may be, and even though it may also serve as a sample of quality; 5 or though some of the goods are not in existence, or are of a different species; 7 provided it is a portion of the bulk stipulated for and enters into

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1 Frostburg Mining Co. v. N. E. Glass Co., 9 Cush. (Mass.) 115 (1851); Burdick's Cases on Sales, 243; Allard v. Greasert, 61 N. Y. 1 (1874); Burdick's Cases on Sales, 246; Caulkins v. Hellman, 47 N. Y. 449 (1872). Contra, Cary v. Williams, 47 Colo. 256; 107 Pac. 219 (1910). This case cannot be supported. The authorities cited deal with acceptance to pass title. See supra, ch. iv. § 1. Leggett & Meyer Co. v. Colliss, 89 Ia. 144; 56 N. W. 417 (1893) is also contra to the prevailing view, but is based on the peculiar language of the Ia. Code, §§ 3663, 3664. The Iowa doctrine is applied to an Iowa contract in Fruit Dispatch Co. v. Gillinsky, 84 Neb. 821, 832; 122 N. W. 45 (1909).

21 Law Quar. Rev. 15; Burdick's Cases on Sales, 757; Remick v. Sanford, 120 Mass. 309, 316 (1876); Dierson v. Petersmeyer, 109 Ia. 233; 80 N. W. 389 (1899); Burdick's Cases on Sales, 666.

Baker v. Cuyler, 12 Barb. (N. Y.) 667 (1852); Brand v. Focht, 1 Abb. App. (N. Y.) 185 (1867); Burdick's Cases on Sales, 248; Washington Ice Co. v. Webster, 62 Me. 341, 361 (1873); cf. dictum of Abbott, C. J., in Tempest v. Fitzgerald, 3 B. & Ald. 680 (1820); Burdick's Cases on Sales, 249 n.

Hinchman v. Lincoln, 124 U. S. 38 (1887); Burdick's Cases on Sales, 225 n.; Leonard v. Roth, 164 Mich. 646; 130 N. W. 208 (1911). 5 Hinde v. Whitehouse, 7 East, 558 (1806).

250.

Scott v. Ry., 12 M. & W. 33 (1843); Burdick's Cases on Sales,

7 Elliott v. Thomas, 3 M. & W. 170 (1838); Burdick's Cases on Sales,

the agreed price.1 If, however, a portion is received, not in part performance of the oral agreement, but pursuant to a new proposition by the buyer, it cannot satisfy the statute.2 And it has been held that if S orally contracts to buy 1,985 shares of stock of five persons, who own them in severalty, the statute is not satisfied as to T's 200 shares by the buyer's receipt and retention of the other 1,785 shares; but the dissenting opinion in the case is worthy of careful perusal.3

135. Receipt of Document of Title instead of the Goods. - The actual receipt of a bill of lading or other document of title to goods may be equivalent to that of the goods themselves; and in jurisdictions where the term "goods" includes intangible property, the acceptance and receipt of the representative of the thing sold will satisfy the statute, because the delivery of such representative is "the only delivery possible of the thing sold." 5 A warehouse delivery order or a dock warrant is not treated as a document of title in England. On the other hand, many of our courts have considered them as legally equivalent to bills of lading, even in the absence of a statute making them negotiable. Where this view obtains, the acceptance and receipt of such an order or warrant should satisfy the statute.

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1 Garfield v. Paris, 96 U. S. 557 (1877); Burdick's Cases on Sales, 253 n.; Dierson v. Petersmeyer, 109 Ia. 233; 80 N. W. 389 (1899); Burdick's Cases on Sales, 666.

2 Atherton v. Newhall, 123 Mass. 141 (1877); Burdick's Cases on Sales, 253.

Thompkins v. Sheehan, 158 N. Y. 617; 53 N. E. 502 (1899); Burdick's Cases on Sales, 667; cf. Avery v. Wall, 39 Mont. 13; 101 Pac. 249 (1909), where a contract to buy a block of 9,500 shares was treated as entire, when made, though the plaintiff's 2,000 shares were severed at the subsequent request of the buyer. The Statute of Frauds was not involved.

• Currie v. Anderson, 2 E. & E. 592 (1860); Burdick's Cases on Sales, 256; Audenreid v. Randall, 3 Cliff. (U. S. Cir. Ct.) 99 (1868); cf. Quintard v. Bacon, 99 Mass. 185 (1868).

'Jones v. Reynolds, 120 N. Y. 213 (1890); Meehan v. Sharp, 151 Mass. 564; 24 N. E. 907 (1890).

• Farina v. Home, 16 M. & W. 119 (1846); Burdick's Cases on Sales, 255; Bentnall v. Burn, 3 B. & C. 423 (1824); Burdick's Cases on Sales, 242.

Davis v. Russell, 52 Cal. 611 (1878); Burdick's Cases on Sales, 477; First Nat. Bank v. Bates, 1 Fed. 702 (1880); Shepard v. King, 96 Ga. 81; 23 S. E. 113 (1895); Burdick's Cases on Sales, 258.

They are included among "Documents of Title to Goods" in the Uniform Sales Act.1

136. Receipt and Acceptance under Contract of Sale with Option to resell or repurchase. In case the contract is for the sale of goods, with an option to the seller to repurchase 2 or to the buyer to resell, acceptance and receipt by the original buyer satisfies the statute both as to the original sale and as to the resale. The provision relating to the resale is not an independent contract, but one of the terms in the original contract of sale. The property passes between the original vendor and purchaser, subject to a condition subsequent.

It has been held that this doctrine is not applicable where the seller orally agrees to take back one of several articles sold under an entire contract, and to credit its purchase price ($750) on the buyer's note for the total price.5

136 (a). Receipt and Acceptance Validate the Contract ab initio. The statute does not require acceptance and receipt at the time of making the oral agreement. Hence, though these acts are done at a period subsequent to the agreement, they provide the evidence required by the statute, and the contract thus evidenced is enforceable as of its original date.

1 Mass. L. 1908, ch. 237, § 76.

2 Williams v. Burgess, 10 Ad. & E. 499 (1839); Burdick's Cases on Sales, 260.

Fay v. Wheeler, 44 Vt. 292 (1872).

Johnston v. Trask, 116 N. Y. 136 (1889); Burdick's Cases on Sales, 261; Pape v. Romey, 16 Ind. App. 470; 45 N. E. 671 (1896); Burdick's Cases on Sales, 263 n.

• Walker & Rogers v. Malsby Co., 134 Ga. 399; 67 S. E. 1039 (1910). Jackson v. Tupper, 101 N. Y. 515; 5 N. E. 65 (1886); Burdick's Cases on Sales, 67; Thedford v. Herbert, 195 N. Y. 63; 87 N. E. 798 (1909).

§ 1. Duties and Rights dependent upon Seller's Engagements.

137. THE sale contract has for its primary object the transfer of the general property in certain goods from the seller to the buyer.1 Hence, the principal duties of the seller are to confer upon the buyer title to the agreed chattels, and to give possession of them to him.2

These, however, may be conditioned, modified, or supplemented by express stipulations of the parties, or by implications from all the circumstances of the case. Moreover, such engagements of the seller, whether express or implied, may be essential elements of the sale contract, that is, they may go to the whole consideration for the buyer's engagements; or, while relating to its subject-matter, they may be collateral to it.

In the English Sale of Goods Act engagements of the former kind are called conditions; those of the latter kind, warranties. The breach of a condition gives rise to a right to treat the contract as repudiated, while the breach of a warranty gives rise to a right to a claim for damages only.3

Moreover, the burden is on the seller of proving his performance of all of the conditions of the contract, while he is under

1 Supra, pp. 1, 2.

2 Martineau v. Kitching, L. R. 7 Q. B. 436, 449 (1872); Burdick's Cases on Sales, 132; Gray v. Walton, 107 N. Y. 254; 14 N. E. 191 (1887); Burdick's Cases on Sales, 633.

Sales of Goods Act, §§ 10-15, 62 (1), “Warranty;" Burdick's Cases on Sales, Appendix, 775.

List & Son Co. v. Chase, 80 Ohio St. 42; 88 N. E. 120 (1909). The contract called for 175 cases of strictly fresh eggs, to be shipped over the C. C. C. & St. L. Ry. The seller shipped by the T. & O. C. Ry. and B. & O. Ry. 195 cases of eggs not strictly fresh.

no such burden of establishing the conformity of the goods to a collateral warranty.1

138. Conditions and Warranties. Prior to the Sale of Goods Act, the rules of law relating to condition and warranties in sales of personal property were in a very unsatisfactory state. A learned writer had attempted to separate implied conditions from implied warranties, in an able treatise on sales, but without marked success. On the one hand, he was criticised for treating as conditions engagements of the seller which should have been dealt with as warranties; 3 while, on the other, he was charged with inconsistency, in classifying various engagements of the seller as warranties, when it was clear that they fell within his definition of conditions. It is not strange that Mr. Benjamin's discussion of these topics is at times confused and perplexing. His attempt to treat them separately was novel; and it was rendered especially difficult by the divergent significations in which warranty and condition had been used by judges, as well as by the discordance of judicial decisions. Even Parliament found the task of properly classifying the seller's engagements a hard one; but after struggling with it for five years, that august body succeeded in bringing a con

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1 Dorr v. Fisher, 1 Cush. (55 Mass.) 271, 276 (1848). "We are of opinion, that the direction of the judge was strictly correct, that if the article was sold to the defendant with a warranty as to its quality, the burden of proof was on the defendant to show that it was not equal to the warranty."

2 Benjamin on Sales (first edition was published in 1868).

3 Ibid. (7th ed.) 594, 608.

4 Ibid. (7th ed.) 644, note (s).

5 Anson on Contracts (3d ed.), 297, where the learned author, after remarking that "it would be a work of some research to enumerate the various senses in which the word 'warranty' is used," proceeds to cite judicial authority for six distinct but common significations.

In McFarland v. Newman, 9 Watts, 55 (1839), Gibson, C. J., said: "On no subject have the decisions been so anomalous as on the warranty of chattels; and an attempt to arrive at a satisfactory conclusion about any principle supposed to be established by them would be hopeless, if not absurd."

7 This will be apparent to any one who compares §§ 11 to 18, inclusive, of the bill as drawn by Judge Chalmers, after consultation with Lord Herschell, Lord Bramwell, and other distinguished lawyers, with §§ 10 to 15, inclusive, of the statute.