and the wheat having been burned, the plaintiff recovered its value as goods sold and delivered, the court saying: "It was a sale of wheat, to be paid for in flour." This, says Dr. Bennett, was "nearly fifty years before the Privy "Council decided Randell's case, cited by Mr. Benjamin "to the same point." He thinks, however, that if the written contract stipulates that the property remains" at "the risk of the owner," the transaction should not be considered a sale, but only a bailment. The subject need not be further discussed in this connection, as it must rarely happen that any question can arise under the Statute of Frauds. If it is a bailment the statute does not apply. If it is a sale it is difficult to conceive of a case in which the statute would not be satisfied by acceptance and actual receipt, in view of the latest authorities as to the meaning of "acceptance." Dr. Bennett's discussion is in the seventh American edition of Benjamin on Sales, with American Notes by Edmund H. Bennett, LL.D., and Samuel C. Bennett (1899), p. 5, which refers to an article in the 6 Am. Law Rev., p. 450, "understood to be by Mr. "Justice Oliver Wendell Holmes." A case occurs in the Territories Law Reports, vol. 4, p. 64, Cargo v. Joyner, in which it was held that the delivery of tickets for grain only showed delivery to the miller, but did not prove a sale to him. CHAPTER II. THE FIRST EXCEPTION. SECTION I.-What constitutes an acceptance, p. 19. HAVING considered what contracts are within the 4th section of the Sale of Goods Act, it becomes necessary to inquire what circumstances will satisfy the statute. It will be observed, on looking at the language of the section, that there are three different modes pointed out in which the contract may be made good, and it is convenient to treat of each of the three ways separately. First, then, what is meant by the first exception, viz., "unless the buyer shall accept part "of the goods so sold, and actually receive the same"? If we seek for the meaning of the section, judging merely from its words, and without reference to decisions, it seems that this provision is not complied with unless the two things concur the buyer must accept, and he must actually receive part of the goods; and the contract will not be good unless he does both. And this is to be borne in mind, for as there may be an actual receipt without any acceptance, so may there be an acceptance without any receipt. In the absence of authority, and judging merely from the ordinary meaning of language, one would say that an acceptance of part of the goods is an assent by the buyer, meant to be final, that this part of the goods is to be taken by him as his property under the contract, and as so far satisfying the contract. So long as the buyer can, without self-contradiction, declare that the goods are not to be taken in fulfilment of the contract, he has not accepted them. And it is immaterial whether his refusal to take the goods be reasonable or not. If he refuses the goods assigning grounds false or frivolous, or assigning no reasons at all, it is still clear that he does not accept the goods, and the question is not whether he ought to accept, but whether he has accepted them. The question of acceptance or not is a question as to what was the intention of the buyer as signified by his outward acts, and the test to be applied is whether the buyer has done any act in relation to the goods which recognizes a pre-existing contract of sale. 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. Such a receipt is often evidence of an acceptance, but it is not the same thing; indeed, the receipt by the buyer may be, and often is, for the express purpose of seeing whether he will accept or not. If goods of a particular description are ordered to be sent by a carrier, the buyer must in every case receive the package to see whether it answers his order or not; it may even be reasonable to try part of the goods by using them; but though this is a very actual receipt, it is no acceptance so long as the buyer can consistently object to the goods as not answering his order. It follows from this that a receipt of goods by a carrier or on board ship, though a sufficient delivery to the purchaser, is not an acceptance by him so as to bind the contract, for the carrier, if he be an agent to receive, is clearly not one to accept the goods (a). The words used in the section are the same as those used in the 17th section of the Statute of Frauds, and the decisions under that statute must be looked at in order to determine what constitutes an acceptance and receipt under the section. On the whole the cases are pretty consistent with each other as to what forms an acceptance within the statute, though not as to the strength of the proof required to establish it. On the question of what constitutes an actual receipt there is some difficulty in reconciling the cases, but we shall return to this part of the subject after citing a few cases to show what is an acceptance. (a) Sanderson v. Vigers, [1901] 1 K. B. 608. SECTION I.-What constitutes an acceptance. In Hinde v. Whitehouse (a), in 1806, sugar was sold by auction under the following condition:-"The sugars to "be taken with all faults and defects, as they now are at the King's weights and tares, with the allowance of draft, or "reweighed giving up the draft." Previously to the sale samples were drawn from each hogshead. It was proved that the samples used at such sales were always delivered to the buyers as a part of their purchase to make up the quantity, and that in this particular case the samples had been delivered to and kept by the defendant, who was the highest bidder for sugar at a price above 107. The defendant's counsel contended that the samples were accepted as specimens only and not as part of the goods sold, but the Court of King's Bench decided otherwise. Lord Ellenborough, in delivering judgment, said, "Inasmuch as the half-pound sample of sugar out "of each hogshead in this case is, by the terms and conditions "of sale, so far treated as part of the entire bulk to be "delivered, that it is considered in the original weighing as "constituting a part of the bulk actually weighed out to the "buyer, and to be allowed for specifically if he should choose "to have the commodity re-weighed, I cannot but consider "it as a part of the goods sold under the terms of the sale, "accepted, and actually received as such by the buyer; and, "although it be delivered partly alio intuitu, namely, as a sample of quality, it does not therefore prevent its operating "to another consistent intent also in pursuance of the purposes "of the parties as expressed in the conditions of sale, namely, "as a part delivery of the thing itself as soon as, in virtue of "the bargain, the buyer should be entitled to retain, and "should retain it accordingly." There could be no question in that case that the buyer had actually received the samples, and it is difficult to give a more concise and accurate definition of the time when an actual receipt becomes an actual (a) Hinde v. Whitehouse, 7 East, 558. receipt and acceptance than is contained in the last few words above quoted. In Morton v. Tibbett (a), in 1850, where the defendant agreed to buy and to send for fifty quarters of wheat, the sale was by sample which he took away with him. He resold it by the same sample, and when the wheat arrived he tendered it to his buyer, who refused to take it, as it did not agree with the sample. The defendant then refused to accept it from the plaintiff. It was argued that there was no evidence of an acceptance to satisfy the statute. But the Court held that there was, and, inasmuch as Lord Campbell said that the defendant had done nothing to preclude himself from objecting that the wheat was not up to sample, he does not appear to have considered that tendering to the sub-vendee was evidence of acceptance, and if that be so, the only evidence was the accepting the sample (b). Lord Campbell, C. J., said (c), "We are therefore of opinion that there may be an accept"ance and receipt within the meaning of the Act, without "the buyer having examined the goods or done anything to "preclude him from contending that they do not correspond "with the contract." And this opinion was confirmed by Lord Campbell, C. J., in Parker v. Wallis (d), in 1855, and by Bramwell, B., in Castle v. Sworder (e). The acceptance of the sample is a present actual acceptance, with the proviso that it may be returned if the bulk do not correspond with it. In Page v. Morgan (ƒ), in 1885, where there was a sale of wheat by sample, and the buyer having received a number of sacks of wheat delivered under the contract into his premises opened the sacks to see if they were equal to sample, but immediately after so doing gave notice to the seller that he refused the wheat as not being equal to sample, it was held that there was evidence of acceptance. (a) Morton v. Tibbett, 19 L. J. Q. B. 382; 15 Q. B. 428. (c) 15 Q. B. 434. (d) Parker v. Wallis, 5 E. & B. 21. (e) Castle v. Sworder, 5 H. & N. 287. (f) Page v. Morgan, 54 L. J. Q. B. 434; 15 Q. B. D. 228. |