where it was held that there was a sufficient written memorandum of the contract, though the defendant declined to receive the goods because they were injured by the negligence of the carrier through whom they were sent: Williams J. said, p. 859, "It cannot for a moment be controverted here, that in point of fact there was a good and lawful contract between the plaintiffs and the defendant for the sale of the goods in question. But it is equally clear, that, as the price of the goods bargained for exceeded the value of 107., the contract was not an actionable one unless the requisites of the 17th section of the Statute of Frauds were complied with......The effect of that enactment is, that although there is a contract which is a good and valid contract, no action can be maintained upon it, if made by word of mouth only, unless something else has happened, ex. gr. unless there be a note or memorandum in writing of the bargain signed by the party to be charged. As soon as such a memorandum comes into existence, the contract becomes an actionable contract." In Taylor v. Wakefield (a), where the Court held that there was no evidence of an acceptance and receipt to bind the bargain, the goods at the time of the verbal contract for purchase were in the possession of the purchaser as bailee there was no delivery of them by the seller in pursuance of a previous contract; a delivery requires an act to be done by both parties: also the parol contract was disaffirmed by the seller before it was acted upon by the purchaser. [Blackburn J. In Meredith V. Meigh (b), where goods verbally ordered had been delivered on board a ship selected by the vendor, though : 1865. SMITH V. HUDSON. (a) 6 E. & B. 765. VOL. VI. 2 G (b) 2 E. & B. 364. 1865. SMITH V. HUDSON. there was a sufficient delivery to support an action for goods sold and delivered there was not an acceptance and receipt to bind the contract. In Cusack v. Robinson (a), where the sale was of specific goods, it was held that an acceptance prior to the receipt would satisfy the statute. Here the lapse of four days during which the bankrupt allowed the goods to remain at the railway station is some evidence that he accepted them.] In Bushel v. Wheeler (b), where the vendee having ordered goods to be sent by a particular vessel received the invoice which stated a three months credit, and allowed the goods to remain in the warehouse of the owner of the vessel until after that credit had expired, and then repudiated them, it was held that the Judge ought to have left to the jury whether there was an acceptance and receipt. In Morton v. Tibbett (c) a subsale of goods which had never been seen by the vendee was held to be evidence of acceptance. Thirdly. Assuming that the contract did not vest the property of the goods in the vendee and that there was no actual acceptance of them by him, they were at the time of his bankruptcy in his order and disposition by the consent of the true owner within the true intent and meaning of the bankrupt laws, and therefore passed to the assignees. The station master was cognizant of the bankrupt's practice to have corn which he had purchased sent to his order at the railway station. [Blackburn J. The question is whether the public were aware that the practice of the bankrupt was to have corn purchased by him sent to lie at the station for his acceptance.] (a) 1 B. & S. 299. (b) 15 Q. B. 442, note. (c) 15 Q. B. 428. Gray (Joseph Brown with him), for the defendant.Admitting that the transitus was at end, there was no acceptance of the goods so as to make a valid contract within sect. 17 of the Statute of Frauds. [Cockburn C. J. The defendant had performed his part of the contract by delivering the goods to the agent of the vendee. Is there any case in which after the seller has done all that lies on him to do he can repudiate the contract and demand back the goods?] There must be an acceptance as well as a delivery; and with respect to these goods the purchaser did no act evidencing his acceptance of them. [Cockburn C. J. Suppose the purchaser accepts subject only to a right to reject the goods if they do not correspond with the sample, does not the property in the goods pass so far as the vendor is concerned, unless there be something to shew that such was not the intention of the parties?] No property passes by delivery to the agent of the purchaser unless the sale be of specific goods; Godts v. Rose (a). [Blackburn J. referred to Dutton v. Solomonson (b).] In Norman v. Phillips (c) the vendee kept the invoice more than a month after the arrival of the timber at the railway station, and yet it was held that there was not sufficient evidence of an acceptance. Hunt v. Hecht (d) is an express authority that unless the vendee has an opportunity of judging whether the goods sent correspond with those ordered there can be no acceptance and receipt within the statute. [Cockburn C. J. If the vendor delivers to the purchaser, the delivery and acceptance are mutual.] The latter receives into his possession but does not necessarily accept. The 1865. SMITH V. HUDSON. (a) 17 C. B. 229. (b) 3 B. & P. 582, 1865. SMITH v. HUDSON. delivery does not bind the contract, because the vendee may return the goods if they do not agree with the sample. In Morton v. Tibbett (a) Lord Campbell, in: delivering the judgment of the Court, said, "The acceptance to let in parol evidence of the contract appears to us to be a different acceptance from that which affords conclusive evidence of the contract having been fulfilled." In Bushel v. Wheeler (b) the vendee made no communication to the vendor till five months after the arrival of the goods. In Nicholson v. Bower (c), the vendee had examined a bulk sample of the wheat and did not object to it, yet it was held that assuming the transitus to have been at an end on the arrival of the wheat at the warehouse of the railway Company there was no acceptance of it by the vendee, and therefore the property never vested in him. An acceptance by the purchaser within the Statute of Frauds must be with the continuing consent of the vendor, and in Bailey v. Sweeting (d) there was such an acceptance; here the acceptance by the assignees was not until after the defendant had withdrawn his consent and repudiated the contract. Taylor v. Wakefield (e) was cited in that case, and Willes J., p. 850, distinguished it on that ground. The assignees have no right to come in and make the transaction a binding contract while it is open to either of the parties to say that they do not choose that it shall be matured into a contract. The goods did not pass to the assignees under the bankruptcy. By stat. 12 & 13 Vict. c. 106. s. 125., "if any bankrupt at the time he becomes bankrupt shall, by (a) 15 Q. B. 428. 435. (c) 1 E. & E. 172. (b) 15 Q. B. 442, note. (e) 6 E. & B. 765. the consent and permission of the true owner thereof, 1865. SMITH V. HUDSON. (a) 8 Taunt. 76. 1 B. Moo. 519. (b) Holt N. P. C. 556. |