statute (31). The question whether or not there has been an acceptance is one of fact, to be determined by the jury, upon all the evidence, including the circumstances of the case. An acceptance may be indicated by the conduct of the purchaser, as when he does an act which would be justified only if he was the owner of the goods. Detention of the goods for an unreasonable time by the purchaser is evidence of an acceptance by him (32).

§ 23. Same: Receipt. Actual receipt means the acquisition of possession by the buyer or his agent. A number of states hold that to constitute such actual receipt there must be something more than mere words. In Shindler v. Houston (33) the plaintiff was the owner of a quantity of maple plank and scantling. The plaintiff and defendant met at the place where it lay, and the plaintiff said to the defendant, "What will you give for the plank?" The defendant said he would give three cents a foot. The plaintiff then asked, "What will you give for the scantling?" The defendant replied, "One and a half cents a foot." The plaintiff then said, "The lumber is yours." The defendant then told the plaintiff to get the inspector's bill of it and carry it to Mr. House, who would pay it. It was held that this did not constitute an acceptance and receipt of the lumber. "There must be a vesting of the possession of the goods in the vendee as absolute owner, discharged of all lien for the

(31) Bullock v. Tschergi, 13 Fed., 345. Contra, Legett & Meyer Co. v Collier, 89 Iowa, 144.

price on the part of the vendor, and an ultimate acceptance and receiving of the property by the vendee, so unequivocal that he shall have precluded himself from taking any objection to the quantum or quality of the goods sold."

Where the goods are ponderous and incapable of being handed from one to another, as a stack of hay, there need not be an actual delivery; but it may be done 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 (34). Where sugar in a royal warehouse, which could not be removed until the duties were paid, was sold at auction, and halfpound samples were taken from each hogshead, after they were weighed, and delivered to the purchasers, as a part of the purchases, to make up the quantity, there was held to be an actual receipt of a part of the goods by the buyer (35). The receipt of a mere sample, not taken from the goods sold, is not sufficient. There may be an actual receipt of goods by the creation of a bailment, as where the purchaser of horses requested the vendor to keep them at livery for him, or a wharfinger or warehouseman, upon receipt of notice of a sale of goods and delivery of the key, makes a new entry of the goods in the name of the vendee (36). There is, in that case, a receipt by the creation of a bailment for the purchaser. There must be a change of possession. As long as the

(34) Chaplin v. Rogers, 1 East., 192.
(35) Hinde v. Whitehouse, 7 East., 558.
(36) Elmore v. Stone, 1 Taunton, 457.

seller retains possession or a lien on the goods, there can be no receipt by the purchaser. Where the goods are in the possession of a warehouseman, there can be no actual receipt of the goods until the warehouseman accepts the order for delivery to the purchaser and assents to holding the goods for him (37). Whenever the goods are in the possession of a bailee, the creation of the relation of bailment between the bailee and the purchaser is a satisfaction of the statute, by a receipt of the goods on the part of the buyer. A sale may take place by parol, where the purchaser already has possession as a bailee for the seller.

§ 24. "Give something in earnest to bind the bargain or in part of payment." The distinction between giving something "in earnest" and as part payment of the price is of no importance at the present time. The part payment may be in money, or property, or the use of property, or services; in fact, any valuable consideration. The buyer's check may be a part payment, if accepted as such (38). Unless the statute expressly requires that the part payment be made at the time of the contract, it is not necessary that the payment be made at the precise period of making the verbal agreement (39). In those states where the statute requires the payment to be made "at the time," a part payment made at a later time will render the verbal contract valid, if at the time the payment is made the contract be reaffirmed by the

(37) Bentall v. Burn, 3 B. & C., 423.
(38) Hunter v. Wetsell, 84 N. Y., 549.
(39) Thompson v. Alger, 12 Metcalf, 424.

parties, in which case the contract is regarded as entered into at the time of the payment (40).

In Walker v. Nussey (41) the plaintiff sold and delivered goods above ten pounds in value, to the defendant, who had previously sold goods to him for four pounds. It was agreed between them that that sum should be taken as part payment and that the defendant should only pay the difference. It was held that the four pounds could not be taken as a part payment, to satisfy the statute of frauds. The part payment must take place either at or subsequent to the time the contract is made.

The payment may be made by the purchaser or by a third person on his behalf, but a promise of payment, either by the purchaser or by a third person, is not to be regarded as a part payment. Where A, who has sold goods to B, agrees that if C will promise to pay him a certain sum, he will give credit for that amount to B, such a promise made by C does not amount to a payment (42). The payment must be received and accepted as such by the seller. A tender of payment is not sufficient (43).

§ 25. "Or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." A "note or memorandum" is all that is required. A formal contract or bill of sale is not

necessary to satisfy the statute. The memorandum may be written with a lead pencil. It is not necessary that the memorandum be signed by both parties. If one party has signed the memorandum, the contract can be enforced against him, though not against the other.

"The party to be charged" is the party against whom enforcement of the contract or recovery is sought. The party signing may use his initials alone, or a mark, if it be intended as his signature. The signature may be placed anywhere upon the memorandum, as where one draws up an agreement or memorandum in his own handwriting, beginning, "I, A. B., agree," having a place for his signature at the bottom, but never signs it. But if the statute requires the note or memorandum to be "subscribed," it must be signed at the end. The signature may be printed, as where the seller's name was printed at the head of a bill of parcels and he filled in the name of the buyer and a list of the articles. The printed form is here adopted by the seller, and is sufficient as a signature (44). The memorandum need not be signed at the time of entering into the contract.

§ 26. Same: Papers not intended as memorandum may be used. The memorandum need not be all contained in one paper, but may be in correspondence or on different papers, which refer to the same transaction and are sufficiently connected by reference to allow them to be received in evidence together, as if they constituted one document (45).