merchandise contracted for, took the sale out of the statute as to the whole. * * * Now, if there were two separate contracts of sale, one for the herring and one for the hake, it is clear that the acceptance and receipt of the herring did not take the contract for the hake out of the statute, for an acceptance under one contract cannot make another contract valid. But if there was in fact only one contract, for both herring and hake, negotiated for, it may be, successively, a delivery followed by an acceptance and receipt of the herring did take the hake out of the statute. * * * * * * * * * The application of the statute of frauds in case of the purchase of a number of articles at the same transaction may depend upon whether there is one contract or more. The mere fact that a separate price is agreed upon for each article, or even that each article is laid aside as purchased, makes no difference, so long as the different purchases are so connected in time or place, or in the conduct of the parties, that the whole may be fairly considered as one transaction. Such is the common case of a number of articles purchased at private sale of a shopman, for instance, at the same time, though at separate prices. * * * The same doctrine was applied in a case where the parties made bargains for the purchase and sale of several lots of timber at different places, some miles apart; the bargains being made at the different places and at separate prices, but all on the same day. Such purchases may be regarded as entire, though composed of separate parts. But whether such negotiations for separate articles result in one entire contract for the whole, or whether the contract for each remains separate and distinct, may depend upon many circumstances. It raises a question of fact properly to be passed upon by a jury. Were the transactions near in time or place or similar in circumstances? What was the conduct of the parties? Was the seller a merchant engaged in the regular course of his business in his shop or store? What was the language used? What are the proper inferences to be drawn as to the intention of the parties? The answers to these and other like questions solve the problem. If the circumstances are such as to lead to a reasonable supposition that the parties intended that the whole. series of transactions should constitute one trade, they may be regarded as one entire contract; otherwise, not. Now, in the case at bar, the jury were instructed, in effect, that, if the two contracts for sale were made at the same interview, that would be sufficient. We think this ruling was erroneous. Even if there were no other facts or circumstances to be considered, which is hardly supposable, it cannot be said, as a matter of law, that the mere fact that the negotiations for the herring and the hake were made at the same interview resulted in a single contract. They may have constituted one contract only, and they may not. If not, then the hake were not taken out of the statute by the acceptance of the herring. Whether the negotiations constituted one contract or more was a question of fact, and should have been submitted to the jury. Exceptions sustained. SECTION 8.-COMPLIANCE WITH THE STATUTE CASTLE v. SWIFT & CO. (Court of Appeals of Maryland, 1918. 132 Md. 631, 104 Atl. 187.) PATTISON, J. The action in this case was brought by the appellee, Swift & Co., to recover the loss sustained by it in the resale of eggs claimed to have been sold by it to the appellant, Frederick C. Castle, and which he refused to take under such alleged sale. This appeal presents the question whether, under the statute known as the "Sales Act," there was a sale of the eggs by the appellee to the appellant that can be legally enforced. J. Frederick Conrad, salesman for Swift & Co., testified that on Friday night, November 24, 1916, the defendant, a dealer in butter and eggs in the city of Baltimore, called the plaintiff over the phone at its Eutaw Market, Baltimore, Md., and asked the price of eggs. Witness quoted them to him at 37 cents per dozen, whereupon the defendant first offered 36 cents, but finally offered to purchase 200 cases and to pay therefor 362 cents per dozen, if, as stated by the witness, "I would put them in our upstairs butter cooler, and he would order them out as he needed them." The eggs were to be placed in the butter cooler to save him the cost of storage. This offer was accepted, but, as Saturday was "a half holiday," the eggs were not put aside for the defendant until Monday, when, as requested by him, they were put in the butter cooler and designated as his eggs. On Tuesday morning the eggs were billed to him. On Wednesday morning the defendant again called the plaintiff over the phone, and Conrad, who answered the phone, was told by him that "the egg deal was off." Castle assigned as a reason therefor that the plaintiff's Pratt Street Market, as well as another dealer, had offered eggs to him at a lower price. The plaintiff refused to treat the deal as off, and upon the defendant's refusal to take the eggs and to comply with the terms of said agreement, they were resold by the plaintiff; the sum received therefor being less than the amount at which they had been sold to the defendant at such alleged sale. * * * It is conceded that there was nothing given in earnest to bind the contract, or in part payment of the purchase money for the eggs said to have been bought by the defendant, and that there was no note or memorandum in writing of the contract or sale signed as required by the statute; consequently, in order to hold the contract or sale binding and enforceable against the defendant, the alleged buyer, it must be shown that he accepted at least a part of the eggs contracted to be sold or sold, and that he actually received the same. Therefore in this case we are concerned only in the meaning of .the statute in respect to the provisions requiring acceptance and receipt by the buyer of the goods sold. It is clear that the terms of the statute require two distinct acts on the part of the vendee; he must accept, and he must actually receive, a part of the goods, in order to render the contract binding on him. There may be an actual receipt without any acceptance, and there may be an acceptance without any receipt. An acceptance may precede or follow the receipt, or it may be contemporaneous therewith; and at times even a receipt may be evidence of acceptance, but it is not the same thing. * * * As defined by the statute (section 25) there is an acceptance of the goods "when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to become the owner of those specific goods." By section 69 of the same article he "is deemed to have accepted the goods when he intimates to the seller that he has accepted them." In Williston on Sales, § 483, it is said: "The ways of manifesting acceptance may be reduced to the three enumerated in the section of the Sales Act under consideration, namely: (1) Intimation of acceptance. (2) Exercising acts of ownership. (3) Retaining the goods. Under the first head will be included both cases where the buyer receives goods and expresses his acceptance of them, and also cases where by the terms of the bargain the buyer agreed to accept goods, whether specified at the time of the bargain or to be afterwards selected by the seller, without inspection." All cases admit that the term "actually receive," found in the statute, means the acquisition of possession by the buyer, and whatever difficulties exist in regard to its meaning are largely due to the inherent difficulty of determining what is, in fact, possession. This court, however, has said, speaking through Judge Alvey, that: "The receipt of part of the goods is the taking possession of them. When the seller gives to the buyer the actual control of the goods, and the buyer accepts such control, he has actually received them." Hewes & Co. v. Jordan, 39 Md. 472, 17 Am. Rep. 578. It is said, however, upon good authority, that goods may be received by the buyer within the meaning of the statute, and yet allowed to remain in the hands of the vendor, if it be shown that the seller has ceased to hold in the character of unpaid vendor and holds wholly as bailee for the buyer. Williston on Sales, § 91, and the numerous cases cited in note thereto. In this case we think there is evidence of both acceptance and actual receipt of the goods, which should be submitted as a question of fact to the jury under proper instructions of the court; thus we find no error in the ruling of the court in its rejection of the defendant's first prayer, asking that the case be taken from the jury. But the court in our opinion erred in granting the plaintiff's prayer, in which it is said that, if it be disclosed by the evidence that the defendant purchased the eggs at the price named, and the same were to be placed in the butter cooler to save him storage, and that upon the eggs being placed therein and an invoice sent to him he was to pay for the eggs, then the placing of the eggs in the butter cooler under such circumstances vested the title to said eggs in the defendant. This prayer fails to recognize, or at least within sufficient clearness, the essential requirements of the actual receipt of the goods by the buyer and the intention of the parties as to the same. It was not only necessary to find that the eggs were placed in the butter cooler, but it was also to be found that by so doing the unrestricted control of the eggs passed to the buyer, and that such was the intention of the parties. * * * Because of the error of the court in granting the plaintiff's prayer, the judgment of the court below will be reversed. * * DRIGGS v. BUSH et al. (Supreme Court of Michigan, 1908. 152 Mich. 53, 115 N. W. 986, 15 L. R. A. [N. S.] 654, 125 Am. St. Rep. 389, 15 Ann. Cas. 30.) Action by Hue H. Driggs against Levi Bush and another. Judgment for plaintiff, and defendants bring error. MONTGOMERY, J. The plaintiff is a buyer of hay, and through his agents, Homer B. McWilliams and John Van Horn, made a contract with the defendants, who own and operate two farms in Van Buren county, and who were the joint owners of the hay crop thereon, for the purchase of 24 tons of hay or more at the option of the defendants. The contract was by parol, and, as appears by the testimony offered on behalf of the plaintiff, was as follows: "Mr. Dean said: 'I want $10 a ton and you bale the hay.' We finally bought all of the hay for $10 a ton, and we to do the baling, and we were to take the hay the first cars we could get at Gobleville after the hay was baled.' * * * After the contract was made, the plaintiff sent balers to the premises of the defendants who baled the hay, the defendants being present and assisting in the work. The price paid for baling the hay was $1.10 per ton, or $33.55, that being the regular price for such services. The defendants subsequently refused performance of the contract, and this action was brought to recover damages for the breach. Plaintiff was permitted to recover below the difference between the purchase price of the hay and its actual market price at the date when delivery was contemplated. Defendants bring error, and contend that the contract was void under the statute of frauds, and has never been validated and this presents the principal question for our consideration. * * * * * * It is strenuously insisted that there was no such delivery or acceptance, and plaintiff's counsel do not seek to maintain that there was. Without passing directly upon the question, therefore, in this case, we may assume that there was no such completed delivery as the statute requires, and that the defendants still retained the title to the property after the same was baled. The question occurs, therefore, whether the expenditure of $1.10 per ton upon this hay, which remained the property of the defendants, which expenditure was received and accepted by them, and was made in pursuance of the contract between the parties, was such a part payment as answered the requirements of the statute. It is contended that the thing in earnest must be actually paid, and received by the seller. This we fully accept. But there can be no doubt in this case that the service of baling this hay was received and accepted by these defendants, and if this was done at a time while the hay remained their property, and such service was received in pursuance of the contract made between the parties, we can conceive of no valid objection to treating this as a part payment of the consideration which was to pass from the plaintiff to the defendants at a time prior to the passing of the title of the hay to plaintiff. * * * It is not necessary that the payment made upon the contract be in money. * * * In the present case, any work done upon the hay in baling the same, passed a present benefit from the purchaser to the seller, and as it was done in pursuance of the contract, it could be nothing else than payment upon the contract. None of these cases, therefore, militate against the conclusion which we announce, that this contract was validated by the receipt of the benefit of baling the hay in pursuance of the contract. * * * Judgment affirmed. ULLSPERGER v. MEYER. (Supreme Court of Illinois, 1905. 217 Ill. 262, 75 N. E. 482, 2 L. R. A. [N. S.] 221, 3 Ann. Cas. 1032.) * * * RICKS, J. * * From the reading of the sections of the statute it will be seen that it is only necessary that some memorandum or note be made of the contract and signed by the party to be charged therewith. "The statute does not require that the contract itself shall be reduced to writing. It is sufficient if there be a memorandum of the contract in writing signed by the party to be charged or by some one by him duly authorized. No particular form of language is necessary to constitute the memorandum requisite to satisfy the requirements of the statute. An admission in writing of the bargain having been made, although it may not furnish exclusive evidence of the contract, as a final agreement would do, or an offer in writing so stating the proposal that its mere acceptance would fix the terms of the bargain, will, if accepted, satisfy the statute, and the acceptance of the offer in writing may be shown by parol. * * The authorities are agreed that if the memorandum shall contain on its face the names of the parties vendor and vendee, a sufficiently clear and explicit description of the thing, interest, or property as will be capable of identification, together with the terms and conditions of the contract, and signed by the party to be charged, it will be sufficient upon which to predicate a decree for specific performance. * * * The contract or memorandum set up in the bill while in the nature of a receipt, clearly evidences a sale of the property therein described as having taken place from appellee to appellant, and acknowledges that $100 has been paid upon the purchase price of $14,000 by appellant. Appellant is named as the purchaser, and the text of the writing clearly designates appellee as the vendor by whom the writing is signed; so that it will be seen that the contract or writing relied upon contains all that is required by the statute, and more, as the statute does not require that the consideration shall be stated in the writing but authorizes it to be established by parol. It is insisted that there is no time specified for the completion of the contract, and that therefore the contract is not complete. Under such a contract the law would imply that it was to be performed within a reasonable time after entering into the same, and what would be a reasonable time would be a matter of proof under all the conditions and circumstances that might surround the case. * * * * * It is urged that this contract lacks in the material element of mutuality. The particular ground upon which this contention is based is that the contract is signed by appellee only. * We are unable to understand why the mere written option signed by the vendor shall bind him by the verbal acceptance of the vendee and his offer to perform be held to be a mutual and binding contract within the statute of frauds, and the contract of sale acknowledging the receipt of part payment, signed by the vendor, shall be held void for want of mutual |