could not have been maintained for non-delivery. But the mere additional expense of carriage of goods, does not make it a mixed contract distinguishable from sale (n).

SECTION II.- What Delivery and Acceptance of the goods are sufficient to satisfy the Statute.

The first exception made by the statute is, where the buyer shall accept part of the goods "so sold, and actually receive the same."

actual ac

Actual Delivery and Acceptance of part.-The Sufficient voluntary reception of the goods by the buyer, is ceptance. made essential by the words of the statute; therefore a delivery alone on the part of the seller is insufficient, if the purchaser at the time refuse to accept. Defendant went to the shop of the plaintiff, and contracted to purchase several articles, some of which he marked with a pencil, others were measured in his presence, and the whole were sent to his house according to his order, but he refused to accept them; it was held to be no delivery and acceptance to satisfy the statute (a). So, where the vendee opened the bale of goods which had been sent to his order, but returned

(n) Astey v. Emery, 4 M. & S. 262.

(a) Baldey v. Parker, 2 B. & C. 37; and see Nicholle v. Plume, 1 C. & P. 272.

them with a letter, saying that they were not worth the price charged, it was held to be no acceptance (b). So, where the defendant bargained with the plaintiff's agent, for a quantity of cream of tartar and lacdye, saying that he would accept them if the price of the lacdye were diminished; the whole was sent, but he accepted the cream of tartar only, tendering the price for it, and returned the lacdye; it was held, that there had been no acceptance of the latter (c).

Where the purchaser of a quantity of balsam sent a person with baskets to receive part, such acceptance was held to take the case out of the statute as to the whole quantity(d). So it is, where a portion of the goods has been received by way of sample, provided that such sample was considered at the time part of the thing sold, and that the

(b) Kent v. Huskisson, 3 B. & P. 233.

(c) Price v. Lea, 1 B. & C. 156; S. C. 2 D. & R. 295.

(d) Descard v. Bond, cited 2 Stark. Ev. 354. [But see Thompson v. Maceroni, 3 B. & C. 1; S. C. 4 D. & R. 619; it does not appear clearly from the report, on what ground the latter case was decided. The defendant contracted for goods to be made to his order, to the value of £144, and took away part to the amount of £2. 10s. : it was held insufficient to satisfy the statute as to the residue. Qu. whether it was on the ground that the contract was severed, (see Bragg v. Cole, 6 B. Moore, 114); or, that the property in a chattel made to order does not vest in the purchaser until completion and delivery; see Mucklow v. Mangles, 1 Taunt. 318].

ceptance of

sufficient.

bulk of the commodity was thereby actually diminished (e). But it is no acceptance, if the sample formed no part of the bulk contracted for (ƒ). Actual acceptance of part or of the whole may When acbe insufficient, if there are grounds for presuming, part is inthat the vendor did not intend at the time to conclude the bargain, and part absolutely with the property. Thus, at an auction, where by the conditions 30 per cent. deposit was required to be paid down, defendant being the highest bidder for a lot of articles knocked down, took them into his hand, and retained them for a few minutes, but being dissatisfied returned them without paying the deposit, and refused to complete the purchase; the Court held, that it was not to be presumed that the vendor intended, contrary to the condition, to part with the property until the deposit was paid(g). It has been said, that there can be no acceptance within the statute, as long as the buyer has the right of objecting to the quantity or the quality of the goods (h), or as long as the vendor retains his lien (2). Actual acceptance of part of a quantity

(e) Hinde v. Whitehouse, 7 East, 558; Klinitz v. Surry, 5 Esp.

267.

(f) Talver v. West, Holt, N. P. C. 178, per Gibbs, C. J. Cooper v. Elston, 7 T. R. 16.

(g) Phillips v. Bistolli, 2 B. & C. 511.

(h) Vid. per Abbott, C. J., 3 B. & A. 323, and 5 B. & A. 559. (i) See judgments of Abbott, C. J. and Bayley, J., 5 B. & A. 859, and in Smith v. Surman, 9 B. & C. 561.

Construc

ance.

of goods contracted for, will not be effectual to take the residue out of the statute, if the circumstances be such as to destroy the entirety of the contract (k).

Constructive Delivery and Acceptance.—Where tive accept the goods are ponderous and incapable of being handed from one to another, there need not be an actual delivery, but it may be effected by that which is tantamount, such as the delivery of the key of a warehouse in which the goods are lodged, or by the delivery of other indicia of property (. Therefore it was held, that after a verbal bargain and sale of a stack of hay between two parties on the spot, the circumstance of part being taken away by a third person to whom the vendee had sold it, though such taking was against the vendee's approbation, was sufficient to warrant the jury in finding a delivery and acceptance by the vendee (m). In another case, the defendant undertook to purchase 20 hogsheads of sugar from the plaintiff; four were filled up, delivered, and accepted; defendant afterwards, being informed that the other sixteen were ready, promised to take them as soon as possible; it was held, that this was a sufficient appropriation to vest the pro

(k) See Price v. Lea, 1 B. & C. 156; Thompson v. Maceroni, 3 B. & C. 1; Bragg v. Cole, 6 B. Moore, 114.

(1) Per Lord Kenyon, C. J., 1 East, 195; 1 Atk. 171.
(m) Chaplin v. Rogers, 1 East, 192.

perty in the residue in defendant (n). But the mere measuring out and setting aside the commodity bargained for, without an assent to the appropriation on the part of the purchaser, will not be equivalent to acceptance. Defendant agreed to purchase twelve bushels of tares, requesting that they might remain in vendor's possession until called for; and they were accordingly measured and set apart; it was held to be no acceptance (o).

Several acts on the part of the vendee have been decided to amount to implied acceptance, even where the chattel is not ponderous or difficult of removal. Defendant agreed to buy two horses, but, having neither servant nor stable, directed plaintiff to keep them at livery for him, and the plaintiff accordingly removed them from his salestable to another; this was held to amount to delivery and acceptance (p). So, it was held to be properly left to the jury, where defendant, having contracted for the purchase of a horse, offered to a third party to resell it as his own (q). It was ruled by Lord Ellenborough, that where the purchaser writes his name upon the goods bargained for, with intent to denote that he has appropriated

(n) Rohde v. Thwaites, 6 B. & C. 388.

(0) Howe v. Palmer, 3 B. & A. 321. [In Simon v. Metivier, 1 Bl. Rep. 599, the Court were inclined to lay some stress on the circumstance of defendant coming to see the goods weighed]. (p) Elmore v. Stone, 1 Taunt. 458.

(g) Blenkinsop v. Clayton, 7 Taunt. 597.