warranty where they exist." The intention of the buyer to accept unfinished goods or articles in the process of manufacture must be very clearly and conclusively shown to establish acceptance. At any time before acceptance, the seller may withdraw his offer, although the goods may have been delivered and received, for the buyer cannot accept them without the seller's consent."

RECEIPT. The statute provides that the buyer must not only accept, but must also "actually receive" a part of the goods."

NATURE OF RECEIPT.-" 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.' "To satisfy the statute there must be a delivery by the vendor with an intention of vesting the right of possession in the vendee and there must be an actual acceptance (acceptance of possession, i. e., receipt) by the latter with the intent of taking possession as owner.

Mere words do not constitute receipt.78 The receipt must be "acts of such a character as to unequivocally place the property within the power and under the exclusive dominion of the buyer

as absolute owner, discharged of all lien for the price."79 It may be complete though the terms of the agreement are in dispute.80 GOODS IN VENDOR'S POSSESSION.-The actual removal by the buyer from the vendor's possession and taking into his own of a part, however small, of the thing sold if taken as a part of the bulk and by virtue of his purchase is an actual receipt sufficient to satisfy the statute.

GOODS IN BUYER'S POSSESSION.-When the goods sold are at the time of the sale in the possession of the buyer only as the agent or bailee of the seller, no actual delivery to the seller's possession and redelivery to the buyer is necessary. 82 But delivery and actual receipt to satisfy the statute is shown by proof of a change of relationship of the parties as shown by their acts toward the goods.83" If it appears that the conduct of the defendant in dealing with the goods already in his possession is wholly inconsistent with his supposition that his former possession is unchanged, he may properly be said to have accepted and actually received such goods under a contract so as to take the case out of the operation of the statute of frauds, as, for instance, if he sells or attempts to sell goods, or if he disposes absolutely of the whole or any part of them, or attempts to do so, or alters the nature of the property or the like."'84

When the parties occupy the same premises a sufficient delivery and receipt may be made without removing the goods, the vendee assuming and the vendor surrendering the dominion over them.8

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GOODS IN THIRD PERSON'S POSSESSION.- When the goods at the time of the sale are in the possession of a third person, an actual receipt takes place when the vendor, the purchaser and the third person agree together that the latter shall cease to hold the

sard, 120 Mich. 611; Kirby v. Johnson, 22 Mo. 354; Shindler v. Houston, 1 N. Y. 261. But see Calkins v. Lockwood, 17 Conn. 154; Jewett v. Warren, 12 Mass. 300,

79. Marsh v. Rouse, 44 N. Y. 643. Approved in Benjamin on Sales, § 179; Hinchman v. Lincoln, 124 U. S. 38; Denny v. Williams, 87 Mass. (5 Allen) 1; Rodgers v. Jones, 129 Mass. 420; Shindler v. Houston, 1 N. Y. 261.

80. 1 Mechem, § 395.

81. Klinitz v. Surrey, 5 Esp. 267; Benjamin on Sales, § 180.

82. Snider v. Thrall, 56 Wis. 674. 83. Snider v. Thrall, 56 Wis. 674; Edan v. Dudfield, 1 Q. B. 302.

84. Lillywhite v. Devereux, 15 M. & W. 285; Benjamin on Sales, § 173.

85. Webster v. Anderson, 42 Mich. 554; Reinhart v. Gregg, 8 Wash, 191.

The vendor kept a horse and other goods in a rented barn. He sold them to his mother who rented the same barn, and kept them there. He then

goods for the vendor and shall hold them for the purchaser.s Notification of sale to a custodian having a prior lien is not a receipt by the vendee unless he waives his lien.87 If the vendor leaves goods with a third person to be delivered to the vendee upon demand and he makes no demand, there is no receipt.

CONSTRUCTIVE RECEIPT.-Actual receipt need not be physical receipt, and this is often impossible. If the vendor surrenders to the vendee his dominion and control of the goods it is sufficient.89 This is usually the case with ponderous goods, goods in the custody of third persons or at a distance and inaccessible.90

Mr. Mechem has collected the following examples of constructive or symbolic receipt:" Delivery and receipt of the key to the building in which the goods are stored, even where the key is delivered at a considerable distance from the building; the delivery and receipt of an order, warehouse receipt or bill of lading for the goods; branding cattle with vendee's mark; the

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vendor pointing out a boom of logs to the vendee, and surrendering control to him;" delivery and receipt of a raft of boards as the symbol of a lot of logs bearing the same mark." "Where the goods are so situated that a delivery cannot be made at the time of sale, as a vessel at sea, a delivery of such evidence of title as the seller possesses is sufficient until the purchaser can obtain possession.98 And where goods though not at sea, are not in the actual but in the constructive possession of the seller, as goods in another's warehouse, or logs in a river, and where it would be very difficult on account of the weight and bulk, as a vessel on stocks, and in other cases of peculiar character, what is denominated a symbolic delivery is sufficient, and this requires the performance of such an act as shows without any other act to be performed that the purchaser has a right to take possession and that the right of the seller to control the property is terminated."" The delivery of a bill of parcels to a large quantity of pig iron lying on a canal bank,1 and the parties stepping up to a separate parcel of 93 tons of iron, and the vendor saying "I deliver this iron to you," was held an actual delivery and receipt.2

Delivery by mailing a bill of sale is perfected the moment the letter is mailed. Cocke v. Chapman, 2 Eng. (Ark.) 197; Begley v. Morgan, 15 La. 162.

Receipt of bill of lading is a sufficient receipt of the goods. Ullman v. Barnard, 73 Mass. (7 Gray) 554. 95. Walden v. Murdock, 23 Cal. 540.

96. Jewett v. Warren, 12 Mass. 300; Carter v. Willard, 36 Mass. (19 Pick.) 1.

97. Boynton v. Veazie, 24 Me, 286. 98. Gardner v. Howland, 19 Mass. (2 Pick.) 599; Lempriere v. Pasley, 2 T. R. 485.

99. Ludwig v. Fuller, 17 Me. 162. Citing Jewett v. Warren, 12 Mass. 300; Badlam v. Tucker, 18 Mass. (1 Pick.) 389; Homes v. Crane, 19 Mass. (2 Pick.) 607; Hollingsworth v. Napier, 3 Caines (N. Y.) 182; Wilkes v. Ferris, 5 Johns. (N. Y.) 335; Harman v. Anderson, 2 Camp. 243; Manton v. Moore, 7 T. R. 67.

1. Van Brunt v. Pike, 4 Gill. (Md.) 270.

2. The delivery and receipt of 93 tons of iron by the vendor stepping up to the iron and saying to the vendee "I deliver this iron to you," is sufficient to satisfy the statute of frauds. “There was nothing remaining to be done, by the vendor, to consummate the sale or delivery. He had no further claim upon the iron. The ponderous nature of the commodity rendered the removal of it, at that time, impossible. And why

should it have been removed? The vendees were there, upon the ground; and went up to receive the iron, when it was delivered by the vendor. The delivery was not symbolical, but actual; and it was received by the vendees at the hands of the vendor, with the intent to take and hold possession of it. The iron was not to be weighed off, and separated from any other, and thus designated. There it was, a parcel of 93 tons by itself."

The delivery of the model of an invention was held as complete a delivery as the circumstances made possible.3

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GOODS TO REMAIN IN SELLER'S POSSESSION AFTER RECEIPT.Notwithstanding the presumptions to the contrary, there may be a delivery and receipt of goods sufficient to comply with the provisions of the statute, although the goods are left in the seller's possession if it clearly appears that all the terms of the contract have been agreed upon and that the buyer has placed the goods in the seller's possession as his bailee or agent. As where the buyer of horses requests the seller to keep them for him and they are removed from his sale stable to his livery stable, or the seller borrows the horse after sale, or a carriage is left with the seller for alteration, or sheep separated and kept for hire by the seller, or barrels of beef are retained for resale on the buyer's account," or hides separated and marked with the buyer's name are left for storage. Counting cabbage and leaving them on the land for vendee to take away is a sufficient delivery and receipt." Where, however, the seller retains possession to preserve his lien,12 or to fit the goods for delivery, or for the performance by the vendee

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Calkins v. Lockwood, 17 Conn. 154, 174. Citing 2 Kent's Com. 394; Chaplin v. Rogers, 1 East, 192; Manton v. Moore, 7 T. R. 67; Stoveld v. Hughes, 14 East, 308.

3. Jones v. Reynolds, 120 N. Y. 213.

4. 1 Mechem on Sales, § 384; Benjamin on Sales, § 182.

5. Stockwell v. Baird, 15 Del. 420; Allin v. Whittemore, 171 Mass. 259; Elmore v. Stone, 1 Taunt. 458. Cf.: Tempest v. Fitzgerald, 3 B. & Ald. 680; Carter v. Toussaint, 5 B. & Ald. 855.

6. Marvin v. Wallis, 6 E. & B. 726. 7. Beaumont v. Brengeri, 5 C. B. 301.

8. Green v. Merriam, 28 Vt. 801. 9. Janvrin v. Maxwell, 23 Wis. 51. 10. Safford ex parte, 2 Low. (U. S. C. C.) 563.

The foregoing examples are quoted in 1 Mechem on Sales, 385.

11. Ross v. Welch, 77 Mass. (11 Gray) 235.

12. Edwards v. Grand Trunk R. R.

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Co. of Canada, 54 Me. 105, 48 Me. 379; Messer v. Woodman, 22 N. H. 172; Marsh v. Rouse, 44 N. Y. 643; Baldey v. Parker, 2 B. & C. 37; Benjamin on Sales, § 187.

The goods may remain in the vendor's possession and yet be accepted and received by the vendee. In such cases, the vendor holds possession of the goods not by virtue of his lien, but under some new contract by which the relation of the parties were changed. Safford v. McDonough, 120 Mass. 291.

13. Knight v. Mann, 118 Mass. 143, 120 Mass. 219; Rodgers v. Jones, 129 Mass. 420 (skins to be assorted and weighed but removed by purchaser); Messer v. Woodman, 22 N. H. 172 (separation and weighing of hay sold from a larger mass); Smith v. Evans, 36 S. C. 69 (bales of cotton to be selected and delivered).

14. Terney v. Doten, 70 Cal. 399 (sale of unbroken horses to be selected and broken by vendee, but left on the vendor's premises until paid for).