In Abbott v. Wolsey (a), in 1895, where goods sold were delivered to the buyer, who took a sample from them, and after examining it said the goods were not equal to his sample, and he would not have them, it was held that there was evidence of an act done by him in relation to the goods which recognized a pre-existing contract of sale, and therefore evidence of an acceptance within the meaning of section 4 (3) of the Sale of Goods Act, which now gives these decisions a statutory sanction.

In Phillips v. Bistolli (b), in 1824, the sale was at an auction, one of the conditions being that the buyer was to pay 301. per cent. upon being declared the highest bidder, and the residue before the goods were removed. The defendant had some earrings knocked down to him at 881. they were handed to him; after three or four minutes he returned them, stating that he thought the bidding was 481. The auctioneer brought an action for the price, and Abbott, C. J., told the jury that, if there was no mistake as to the bidding, there was in law an acceptance and actual receipt. The jury found there was no mistake, and a verdict was entered for the plaintiff. The Court of King's Bench granted a new trial, because the delivery of the earrings to the buyer, who had neither paid deposit nor price, was at most but very slight evidence that the seller parted with the right of possession, and that the keeping of the goods for a few minutes was but slight evidence of an acceptance by him as owner; in short, they thought that the buyer was not proved to be either, in the language of Lord Ellenborough above quoted, "entitled in virtue of the bargain to retain," nor to have "retained accordingly." The two cases agree most accurately as to what must be proved, though it may be that Lord Ellenborough would have thought the evidence in Phillips v. Bistolli (b) sufficient, whilst, perhaps,

(a) Abbott v. Wolsey, 64 L. J. Q. B. 587; [1895] 2 Q. B. 97.

(b) Phillips v. Bistolli, 2 B. & C. 511. See also Taylor v. Smith, 61 L. J. Q. B. 331; [1893] 2 Q. B. 63; Taylor v. G. E. Railway, 70 L. J. K. B. 114; [1901] 1 K. B. 774; Rennie v. Moss, W. N. (1902) 122,

the Judges of 1824 would have hesitated in Hinde v. Whitehouse (a).

In Kent v. Huskisson (b), in 1802, the facts seem all to have been truly stated in a letter from the defendant to the plaintiff: "After receiving a letter from your house in town, "stating the bale of sponge was sent by your directions, I "called in a friend or two who are competent judges of the "article, and asked them to say, according to the present "price of sponge, what it was worth. The answer was, "not more than 68. per pound: have therefore returned "it to you by the same conveyance." There had been a

verbal contract for the sale of more than 101. worth of sponge at 11s. per pound. The Common Pleas were clear that these facts did not amount to an acceptance and receipt. Heath, J., observed, that the buyer, to bring the case within the words of the statute, must "both accept and receive. "Now that acceptance I cannot consider to be any other than "the ultimate acceptance, and such as completely affirms the "contract." Chambre, J., said, "Certainly there was no acceptance of the goods by the defendant, unless we can "consider a refusal to accept as amounting to an acceptance." The acceptance under the statute must be with the intention of taking possession as owner, as Parke, B., said in Farina v. Home (c).

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In Hunt v. Hecht (d), in 1853, the defendant examined a heap of bones lying on the plaintiff's premises, and instructed the plaintiff to put a certain quantity into sacks and to send them to a wharf for shipment. As soon as he heard of the delivery at the wharf he inspected them and refused to accept them as not being what he had bargained for, and the Court held that although there was a receipt there was no evidence of acceptance (e).

(a) Hinde v. Whitehouse, 7 East, 558.

(b) Kent v. Huskisson, 3 B. & P. 233.

(c) Farina v. Home, 16 L. J. Ex. 73; 16 M. & W. 123.

(d) Hunt v. Hecht, 22 L. J. Ex. 293; 8 Ex. 814.

(e) See also Norman v. Phillips, in 1845, 14 L. J. Ex. 306; 12 M. & W. 277, where the Court was of opinion that although there might be a scintilla of

In Nicholson v. Bower (a), in 1858, the plaintiff was the buyer's assignee; the buyer had agreed to buy by sample, of the defendant, 141 quarters of wheat which the defendant sent to London, where it was warehoused by a carrier. The buyer sent to the warehouse for a sample, and, having examined it, gave orders that the bulk was not to be sent for. He was then insolvent, and the Court, being of opinion that he acted in this way thinking that he ought not under the circumstances to accept the wheat, held that there had been no acceptance.

In Hart v. Bush (b), in 1858, the buyer in Lancaster ordered brandy of the seller's traveller to be sent to a wharf in London to be shipped from there to him at Lancaster: the ship was lost. It was held that there was no acceptance.

In Simmonds v. Humble (c), in 1862, the defendant, having purchased hops lying in a warehouse, by sample, sent his agent to meet the plaintiff's agent: the two agents went over the hops, compared the bulk with the sample, and agreed on certain allowances. Nothing further was done, and the Court was of opinion that this was evidence of acceptance.

In Hanson v. Armitage (d), in 1822, the King's Bench decided that a receipt by the buyer's customary carrier was no acceptance; and in Acebal v. Levy (e), in 1834, the Common Pleas ruled the same point of a receipt on board a ship chartered by the buyer. The reason assigned in both cases was the same: the buyer might still consistently object to the goods when they came to his hands, in other words, the agent was not an agent having authority to accept the goods, though he had authority to receive them (ƒ).

evidence, there was not sufficient evidence to warrant a jury in finding that there had been an acceptance.

(a) Nicholson v. Bower, 28 L. J. Q. B. 97; 1 E. & E. 172; cf. Taylor v. G. E. Railway, 70 L. J. K. B. 114; [1901] 1 K. B. 774.

(b) Hart v. Bush, 27 L. J. Q. B. 271 ; E. B. & E. 494.

(c) Simmonds v. Humble, 13 C. B. N. S. 258; 9 L. T. 168.

(d) Hanson v. Armitage, 5 B. & A. 557.

(e) Acebal v. Levy, 10 Bing. 376.

(f) Coombs v. Bristol and Exeter Ry. Co., in 1858, 27 L. J. Ex. 401; 3 H, & N,

These cases are inconsistent with and must be considered as overruling a Nisi Prius decision of Chambre, J. (a), in 1814, in which he considered that the buyer constituted the usual carrier his agent to accept and receive.

In Elliott v. Thomas (b), in 1838, the defendant ordered certain bundles of cast and common steel from the plaintiff, and there was no doubt that he accepted the common steel, but he refused to pay for the cast. Parke, B., said it must be taken to have been one contract, and therefore there was an acceptance to satisfy the statute.

In Scott v. The Eastern Counties Ry. Co. (c), in 1843, the defendants ordered of the plaintiff several lamps of different constructions, and among them a triangular lamp, which was the one in question; they were all delivered and paid for except the triangular one, which took a long time to make, and when made the defendants refused to accept it. The Court held that it was one contract, and that the acceptance of some of the lamps took the case out of the statute.

In Bigg v. Whisking (d), in 1853, the defendant accompanied the plaintiff to several places a few miles apart, and bought timber at each; the plaintiff then signed a memorandum of what had taken place. The defendant, after accepting some of the timber, refused to accept the residue. But the Court was of opinion it was one contract, and that there had been a part acceptance, following Elliott v. Thomas (b).

In Beaumont v. Brengeri (e), in 1847, where the defendant agreed to purchase a carriage and had some alterations made in it, and had it placed in a back shop, and subsequently drove out in it, paying the hire of the horse and man, it was held that there was sufficient evidence of acceptance.

510; Cusack v. Robinson, in 1861, 30 L. J. Q. B. 261; 1 B. & S. 299; Coates v. Chaplin, in 1842, 3 Q. B. 483; 6 Jur. 1123. See also Sanderson v. Vigers, [1901] 1 K. B. 608.

(a) Hart v. Sattley, 3 Camp. 528. This case is no longer law, 2 E. & B. 370 E. B. & E. 498.

(b) Elliott v. Thomas, 3 M. & W. 170.

(c) Scott v. The E. C. Ry. Co., 13 L. J. Ex. 14; 12 M. & W. 33,

(d) Bigg v. Whisking, 14 C. B. 195.

(e) Beaumont v, Brengeri, 5 C, B. 301.

In Cusack v. Robinson (a), in 1861, the defendant saw certain firkins of butter lying in the plaintiff's cellar at Liverpool. He agreed to buy them and gave instructions to the plaintiff as to sending them to Fenning's Wharf in London, where they were eventually delivered. There was ample evidence of receipt, but the defendant's case was that the acceptance should follow, or be contemporaneous with, the receipt. The Court held that it might be after it, and upheld the verdict for the plaintiff.

In Taylor v. Wakefield (b), in 1856, the plaintiff had entered into possession, as tenant of the defendant, of a certain mill and machinery. There was a verbal agreement that upon the expiration of the tenancy the plaintiff might take the machinery at a price. When the plaintiff tendered the money the defendant repudiated the contract. The Court held that there was no evidence of acceptance before the contract was revoked. Erle, J., said, "If the purchaser takes "to the goods as such, and changes the character in which he "holds them, it is an acceptance as against him, . . and it

may be, that such an act, if done by the purchaser in "furtherance of the contract before it is revoked, would bind "the contract as against the vendor also."

And in Smith v. Hudson (c), in 1865, where, on the insolvency of the buyer, the seller, who had delivered goods. at a railway station, ordered the railway company not to deliver them, and at that time the buyer, who had a right to reject them if they were not up to sample, had not elected to accept them, but did so after the countermand, the Court held that there could be no acceptance without the consent of the seller.

And if the buyer accepts the goods, but says at the time that he accepts them on other terms than those on which the seller is willing to deliver them, that is a sufficient acceptance (d).

(a) Cusack v. Robinson, 30 L. J. Q. B. 261; 1 B. & S. 299.
(b) Taylor v. Wakefield, 6 E. & B. 765; 2 Jur. N. S. 1086.

(c) Smith v. Hudson, 34 L. J. Q. B. 145; 6 B. & S. 431.

(d) Tomkinson v. Staight, in 1856, 25 L, J. C. P, 85; 17 C, B, 698.