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accept the remainder. Mavor v. Pyne, 3 Bing. 285. See Knoulman v. Bluett, L. R., 9 Ex. 1, 307, Ex. Ch.
The consideration must appear in the memorandum, at least by necessary inference. Wain v. Warlters, 5 East, 10. See further as to the sufficiency of the memorandum, ante, pp. 305 et seq., and post, p. 510.
The contract.- Stat. of Frauds, 8. 17.] By sect. 17 (sect. 16 in Stat. of the Realm), no contract for the sale of any goods, wares, or merchandizes for the price of 101. sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain or in part of payment, 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.”
Contracts within the Stat. of Frauds, 8. 17.] Where the subject-matter of the contract did not exist in esse, and was therefore incapable of delivery and of part acceptance at the time of the bargain, it was held not to be within the statute. Groves v. Buck, 3 M. & S. 178. But now by Ld. Tenterden's Act (9 Geo. 4, c. 14), s. 7, the above provision of the Stat. of Frauds“ shall extend to all contracts for the sale of goods of the value of 101. sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof or rendering the same fit for delivery.". The effect of this last Act is to substitute the word “ value” for “ price ” in the Stat. of Frauds, s. 17, and both Acts are now construed together. Scott v. E. Counties Ry. Co., 12 M. & W.33, 38; Harman v. Reeve, ante, p. 503.
Executory contracts relating to goods in esse, are within the Stat, of Frauds, s. 17, and were so held before Ld. Tenterden's Act. Rondeau v. Wyatt, 2 H. Bl. 63. So, sales by auction are within the section. Kenworthy v. Schofield, 2 B. & C. 945. A sale of shares of a joint stock banking company is not within sect. 17. Humble v. Mitchell, 11 Ad. & E. 205. Nor of shares in a canal company.
Latham v. Barber, 6 T. R. 76. Nor of railway shares. Bowlby v. Bell, 3 C. B. 284; Tempest v. Kilner, 3 C. B. 249. Nor of shares in a mining company. Watson v. Spratley, 10 Exch. 222 ; 24 L. J., Ex. 53. Nor is a sale or contract to deliver foreign stock consisting of bonds and certificates. Heseltine v. Siggers, 1 Exch. 856 ; see post, p. 548. Sales of timber and growing crops where they are not an “interest in land” within sect. 4, may be within sect. 17. See the cases cited ante, pp. 303 et seq., and also the cases under the third exemption from the Stamp Act as to agreements, ante, p. 233. Trees lying felled are within sect. 17. Acraman v. Morrice, 8C. B. 449. A contract for work and labour, as an agreement by a printer to print a book, although it involves finding materials, is not within sect. 17; Clay v. Yates, i H. & N. 73; 25 L. J., Ex. 237; but a contract to make a set of artificial teeth to fit the mouth of the employer is a contract for the sale of a chattel, and therefore within the section. Lee F. Griffin, 1 B. & S. 272; 30 L. J., Q. B. 252. If the substance of the contract be goods to be sold and delivered by the one party to the other, it is within the section. S. C.; Atkinson v. Bell, 8 B. & C. 277; Grafton v. Armitage, 2 C. B. 336. A sale is not less within the statute because it also includes an exchange; Bach v. Owen, 5 T. R. 409; or a collateral agreement touching the thing sold. Harman v. Reeve, 18 C. B. 587; 25 L. J., C. P. 257. The plaintiff agreed to sell a horse to defendant, and to agist the horse sold, and also another horse of the defendant for a fixed time, and defendant was to pay 301. ; it was held, in an action for nonpayment, that the contract was within sect. 17, the horse sold being shown to be of the value of 101. S. C.
Acceptance and receipt within the Stat. of Frauds, 8. 17.) Where goods above the value of 101. have been sold, and there is no note or memorandum in writing, and no earnest has been given or payment made, then there must be a delivery of the goods by the vendor with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter with the intention of taking to the possession as owner; per cur. Phillips v. Bistolli, 2 B. & C. 513. The acceptance need not, however, be absolute; it is sufficient if it be such a dealing with the goods as amounts to a recognition of the contract. Page v. Morgan, 15 Q. B. D. 228, C. A., following Kibble v. Gough, 38 L. T., N. S. 204, C. A.; E. S. 1878, C. A. Acceptance without a delivery is insufficient, for the words are "accept and actually receive;" but the acceptance may be prior to the actual receipt and need not be contemporaneous with or subsequent to it. Cusack v. Robinson, 1 B. & S. 299; 30 L. J., Q. B. 261; Kershaw v. Ogden, 3 H. & C. 717 ; 34 L.J., Ex. 159, post, p. 508; Morton v. Tibbett, 15 Q. B. 429; 19 L. J., Q. B. 382. Where the vendee ordered the goods to be marked while in the hands of the vendor's agent, and to be sent to a certain place, the sale was held to be insufficient without writing; Bill v. Bament, 9 M. & W. 36; and see Saunders v. Topp, 4 Exch. 390; for there can be no acceptance and receipt by the purchaser while the lien of the vendor remains, for the vendor's lien necessarily supposes that he retains possession of the goods. Morton v. Tibbeti, supra; Carter v. Toussaint, Baldey v. Parker, and other cases, post, pp. 506 et seq. Bulk samples were sent to the vendee by coach pursuant to the contract, but he returned them as not answering to the samples shown to him when he bought : the jury in an action for the price of the goods found that the samples did answer the contract: held that there was no acceptance. Johnson v. Dodgson, 2 M. & W. 653. There may be a sufficient acceptance although the buyer continue to have a right to object either to the quantity or the quality of the goods. Morton v. Tibbett, Kibble v. Gough, and Page v. Morgan, supra.
In Hunt v. Hecht, 8 Exch. 814, it was held that there is no acceptance (although there may be a receipt) unless the vendee has had an opportunity of judging whether the article corresponds with the order; and in Smith v. Hudson, infra, it was held that the acceptance must be made with the consent of the vendor. As an acceptance of a part, however small, of articles sold by a single oral contract lets in the oral terms of the entire bargain (Elliott v. Thomas, 3 M. & W. 170), it should seem that there certainly may be an acceptance without an opportunity of examining the whole; though the buyer may, of course, reject the residue if it do not correspond with the part received; for this he may do when the contract is a written
See Morton v. Tibbett, supra, and the judgment there; and see Cunliffe v. Harrison, 6 Exch. 903; 20 L. J., Ex. 325. There may be delivery to and acceptance of the goods by the vendee so as to satisfy the statute, although it may still be open to him to dispute the terms of the contract as alleged by the vendor. Tomkinson v. Staight, 17 C. B. 697; 25 L. J., C. P. 85. And it would seem that though the purchaser has used more of the goods than (in the opinion of the jury) was necessary for the purpose of trying experiments to ascertain their quality, this does not necessarily amount to an acceptance. Elliott v. Thomas, supra ; Curtis v. Pugh, 10 Q. B. 111.
Where the defendant bought of the plaintiff's agent 12 bushels of tares, part of a larger quantity in bulk, and the agent measured the 12 bushels and set them apart for the vendee to remain till called for, it was held that there was no acceptance. Howe v. Palmer, 3 B. & A. 321. So, where goods were sent by a vendor to a railway station, consigned to the order of the vendee, the property in the goods whilst they were lying at the station waiting the order of the vendee, and before any order given or any other act done by him constituting an acceptance, was held not to pass to the vendee. Smith v. Hudson, 6 B. & S. 431 ; 34 L.J., Q. B. 145. So, where A. agreed to purchase a horse from B. for ready money, and to take him within a time agreed upon, and about the expiration of that time A. rode the horse by way of trial, and gave directions as to its treatment, &c., but requested that it might remain in B.'s possession for a further time, at the expiration of which he promised to fetch it away and pay the price; these circumstances were held not to constitute an acceptance. Tempest v. Fitzgerald, 3 B. & A. 680. A horse was sold, and no time fixed for payment, and the horse was to remain with the vendors for 20 days without any charge to the vendee, at the expiration of which time the horse was sent to grass by the direction of the vendee, and by his desire entered as the horse of one of the vendors : it was held that there was no acceptance, as the vendor's possession and lien still remained. Carter v. Toussaint, 5 B. & A. 855 ; accord. Holmes v. Hoskins, 9 Exch. 753. A delivery of goods to a wharfinger or agent who has been accustomed to forward goods from the plaintiff to the defendant, and a delivery by him to the carrier, is not an acceptance, the carrier having no authority, though named by the vendee, to accept the goods for him, but only to receive them for the purpose of being carried. Hanson v. armitage, 5 B. & A. 557; Meredith v. Meigh, 2 E. & B. 364 ; 22 L. J., Q. B. 401. So where goods bought abroad were delivered at a foreign port on board a ship chartered by the purchaser, this was held to be no acceptance. Acebal v. Levy, 10 Bing. 376. So, where the purchaser appointed the mode in which the goods should be conveyed, and directed a third person, in whose possession the goods temporarily were, to see them delivered and measured and put up properly, and they were accordingly sent to another warehouse of the vendor, where the clerk gave an invoice to the purchaser, who did not pay for the goods, but the same day gave notice that he would not accept them, these circumstances were held not to amount to an acceptance. Astey v. Emery, 4 M. & S. 262. The same principle was recognized in the following case: A. went to the shop of B., and contracted for the purchase of various articles, each of which was under the value of 101., but the whole amounted to 701. A separate price for each article was agreed upon. Some A. marked, others were measured in his presence, and others he assisted in cutting from larger bulks. He then desired that an account of the whole might be sent to his house, and went away; a bill of parcels was accordingly sent, together with the goods, which A. refused to accept. It was held that this was all one contract, and therefore within the Stat. of Frauds, and that there was no acceptance and actual receipt. Baldey v. Parker, 2 B. & C. 37. “Upon a sale of specific goods for a specific price, by parting with the possession the seller parts with his lien. The statute contemplates such a parting with the possession, and therefore as long as the seller preserves his control over the goods so as to retain his lien, he prevents the vendee from accepting and receiving them as his own within the meaning of the statute." S. C., Id., p. 44, per Holroyd, J., cited with approval, per cur., in Cusack v. Robinson, 1 B. & S. 308 ; 30 L. J., Q. B. 264, post, p. 508. So, where a hogshead of wine in the warehouse of the London Dock Company was sold for 131., and a delivery order given to the vendee, but there was no assent on the part of the Dock Company to hold the wine as the agents of the vendee, it was held that there was no actual receipt within the statute. Bentall v. Burn, 3 B. & C. 423; Farina v. Home, 16 M. & W. 119. Where A. employed B. to construct a waggon, and while it was in B.'s yard unfinished, A. employed a third person to fix upon it some iron work and a tilt, it was held that this did not amount to an acceptance; but, per Tindal, O. J., it might perhaps have been otherwise if these acts had been done after the waggon was completed. Maberley v. Sheppard, 10 Bing. 99. Where the goods were sent with an invoice, and the vendee declined to receive them of the carrier, who kept them for a month, and until the end of that time the vendee, who had received the invoice, did not communicate with the vendor, it was held that there was not sufficient evidence of acceptance to justify a jury in finding one. Norman v. Phillips, 14 M. & W. 277. Where the consignee of goods, sold by sample, sent for a bulk sample on their arrival at the carrier's warehouse, but refused to remove the bulk in order to favour the right of stoppage in transitu, though the goods did, in fact, answer the sample: held that, assuming the transitus to be ended, there was yet no acceptance. Nicholson v. Bower, 1 E. & E. 172; 28 L. J., Q. B. 97; but see Cusack v. Robinson, post, p. 508; and Heinekey v. Earle, 8 E. & B. 428; 28 L. J., Q. B. 79, Ex. Ch.
There may, however, be a constructive acceptance by acquiescence. Thus, where the goods were sent by a named carrier, and a letter of advice was forwarded to the vendee stating that the credit was three months, and the goods, after arrival, were seen by him in the warehouse of the carrier, when he told the carrier that he refused to take them, but made no communication whatever to the vendor till after five months; it was held that this was evidence to be left to the jury of acceptance and actual receipt. Bushel y. Wheeler, 15 Q. B. 442. In another case, where wheat was sent by a carrier named by the vendee, who was to take it to a market town, where the vendee resold it by the same sample which he had taken from the vendor himself, but never inspected the bulk, this was held to be evidence of acceptance and receipt. Morton v. Tibbett, Id. 428. Goods not specified in the original contract, but selected by the vendor, and shipped by him for delivery to an inland carrier named by the vendee, who was to convey them to the vendee's residence, were lost at sea; a bill of lading had been sent to the inland carrier; held, that this was not evidence of an acceptance and receipt by the vendee, though it would have been a sufficient delivery to him if the contract had been binding; and that the mere silence of the vendee, on hearing that the goods were shipped, would not justify a verdict for the vendor; neither the selection by the vendor, nor the receipt by the carrier, being an acceptance of those particular goods by the vendee. Meredith v. Meigh, 2 E. & B. 364; 22 L. J., Q. B. 401 (overruling Hart v. Sattley, 3 Camp. 528); accord. Hart v. Bush, E. B. & E. 494 ; 27 L. J., Q. B. 271 ; and Smith v. Hudson, 6 B. & S. 431 ; 34 L. J., Q. B. 145, cited ante, p. 506. In Meredith v. Meigh, supra, it was said, per curiam, that if the vendee had received the bill of lading, and dealt with it as owner of the property, this would have been evidence of an acceptance and receipt. And it has since been ruled, on the authority of that case, and of Morton v. Tibbett, supra, that keeping and dealing with a bill of lading is evidence of acceptance. Currie v. Anderson, 2 E. & E. 592; 29 L. J., Q. B. 87. Where the vendee receives the articles sold, but disputes the alleged terms of sale on the delivery, the sale is good, and the terms may be proved by oral evidence. Tomkinson v. Staight, 17 C. B. 697; 25 L. J., Č. P. 85.
The circumstances in the following cases were held to constitute an acceptance and receipt within the statute. Where A. agreed to sell to B. 20 hogsheads of sugar then in bulk, and filled up and delivered 4, and afterwards filled up the remaining 16, and gave notice to the defendant, who said he would take them away as soon as he could, this was held to be an acceptance of the whole number of the hogsheads. Rohde v. Thwaites, 6 B. & C. 388. Where there was a written contract to deliver to defendant by A., as agent of another, and defendant accepted part after knowledge that A. was principal and not agent; held that he could not refuse to accept the residue, and might be sued by A. for nonacceptance. Rayner v. Grote, 15 M. & W. 359. The defendant bought a quantity of hay from the plaintiff, and sold it to another person, by whom it was taken away; it was held that the jury might presume an acceptance by the defendant. Chaplin v. Rogers, 1 East, 192. Where defendant selected and orally agreed to purchase certain goods of the plaintiff, and directed them to be sent to a particular wharf, where he was in the habit of warehousing his goods, that was held sufficient to constitute an acceptance; and the goods having been placed on the wharf under the control of the defendant, so as to put an
end to any rights of the plaintiff as unpaid vendor, that was held a sufficient actual receipt. Cusack v. Robinson, 1 B. & S. 299; 30 L. J., Q. B. 261. Where the defendants agreed to purchase of the plaintiff four specific stacks of cotton waste at so much per lb.; they sent their packer with sacks and carts to fetch it; he packed the waste in 81 sacks ; 21 were weighed, loaded, and taken to the defendant's premises; the other sacks were not weighed; on arrival of the 21 sacks, the defendants refused to accept any of the waste, on the ground that it was of inferior quality to that purchased; and it was held that there was evidence of an acceptance and receipt. Kershaw v. Ogden, 3 H. & C. 717; 34 L. J. Ex. 159. So, where on a sale of wheat by sample, the purchaser received several sacks of wheat, delivered under the contract on his premises, and, immediately after opening the sacks and examining their contents, gave notice to the seller that he refused the wheat, as not equal to sample, this was held evidence of an acceptance. Page v. Morgan, 15 Q. B. D. 228, C. A., following Kibble v. Gough, 38 L. T., N. S. 204.
Though the goods remain in the personal possession of the vendor, yet if it be agreed between the vendor and vendee that the possession shall thenceforth be kept, not as vendor, but as bailee for the purchaser, the right of lien is gone, and then there is a sufficient receipt to satisfy the statute; per cur., S. C., citing Beaumont v. Brengeri, and Marvin v. Wallis, infra. The defendant bought two horses from the plaintiff, a livery-stable keeper, and desired him to keep them at livery for him; it was held that the plaintiff, by assenting to this order, and changing the horses from the stables in which they had been kept to his livery-stables, had relinquished his lien, and that there was a constructive delivery of them to the defendant. Elmore v. Stone, 1 Taunt. 458; Beaumont v. Brengeri, 5 C. B. 301, accord. So, where, on an oral sale of a horse by A. to B., B., without having had it in his possession, lent it to A. at his request for a few weeks, and B. afterwards refused to receive or pay for it; and the jury found that the contract of sale was completed before the loan of it to the vendor : held that there was an acceptance and actual receipt within the statute. Marvin v. Wallis, 6 E. & B. 726 ; 25 L. J., Q. B. 369. So, where the defendant bought some spirits from the plaintiffs, who sent an invoice of certain specified casks, terms six months' credit, and to lie in plaintiffs' warehouse till wanted, free eix months; the plaintiffs kept a general bonded warehouse, and transferred the particular casks to the defendant's name in