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In addition to the cases above referred to, there are a good many which are authorities on both points, viz., whether there was a receipt, and also whether there was an acceptance, and these will be found in the following section.

SECTION II.-What constitutes an actual receipt.

The cases, as has been already observed, are not quite so easily reconciled upon the question of what constitutes an actual receipt. There can be no question, that an actual removal of the goods by the buyer is an actual receipt by him; and when the goods are in the hands of a third party, it is pretty clear that as soon as the seller, the buyer, and the bailee agree together that the bailee shall cease to hold the goods for the seller and shall hold them for the buyer, that is an actual receipt by the buyer, though the goods themselves remain untouched. They were in the possession of an agent for the seller, and so in contemplation of law in that of the seller himself; and they become in the possession of an agent for the buyer, and so in that of the buyer himself; and it can make no difference whether this is by a change in the person of the holder of the goods or merely in his character. So far the question of whether there has been a receipt of part of the goods by the buyer or not is identically the same as whether the seller has so parted with possession as to put an end to his lien as to that part of the goods.

Thus, in Bentall v. Burn (a), in 1824, the King's Bench decided that the acceptance and receipt of a delivery order not lodged with the warehouseman did not bind the bargain: till the warehouse keepers assented to hold the property as agents of the buyer they held it as agents of the seller, and whilst they did so there could be no actual acceptance (receipt?) of the goods.

It has already (b) been pointed out that a carrier, although not an agent to accept, is an agent to receive.

(a) Bentall v. Burn, 3 B. & C. 423.

(b) Ante, pp. 23, 24,

But when the goods are in the custody of the seller himself or his immediate servants, and not of a middleman, there is a difficulty. It will be shown in its proper place (post, page 362), that when the buyer or his assigns and the seller come to an agreement that the seller shall cease to hold the goods as seller and shall hold them as an agent of the owner of the goods, his rights as seller are gone; and though the cases now show that such an agreement between the seller and the original buyer himself must be proved by stronger evidence than one between him and a sub-vendce, it does not seem disputed that such an agreement may be made. At one time the weight of authority was, that such an agreement was to be readily presumed; now the weight of authority is, that such an agreement must be very distinctly proved, and that unless the seller's lien on some part of the goods be gone there cannot be an actual receipt.

In Chaplin v. Rogers (a), in 1800, the plaintiff, by a verbal agreement, sold to the defendant for more than 107. a stack of hay, which he represented to be good. The hay remained in the plaintiff's stack-yard. The defendant seems to have expressed an opinion that the hay was bad, but some time after, one Loft having agreed for the purchase of part of the hay from him at an advanced price, the defendant told him to go and see if it was good. Loft not only thought it good, but took away part without the knowledge or assent of the defendant. The part resold to Loft seems to have been for less than 101., in which case the bargain between him and the defendant may have been binding, so that the defendant could not have revoked the authority given to Loft by it, but the case does not seem to have turned upon that. It was left to the jury to say if there had been an acceptance, and they having found there was, the King's Bench would not disturb their verdict. The expressions used by Lord Kenyon in delivering judgment, show that he thought there might be an acceptance and actual receipt without a removal of the goods; and that the conduct of the defendant, in bargaining about the re-sale,

(a) Chaplin v. Rogers, 1 East, 195, n.

was an admission that the contract was good; but he concludes by saying, "As upon the whole justice has been done, "the verdict ought to stand"; which almost means that the verdict was contrary to evidence. If this case had been tried after the Sale of Goods Act came into operation the finding of the jury would not have been inconsistent with section 4 (3).

In Anderson v. Scott (a), in 1806, at Nisi Prius, the action was by the buyer against the seller for not delivering wine according to a verbal agreement for the sale of it for a price exceeding 101. The spills had been cut in the presence of both parties, and the buyer's initials were marked on the casks, which remained in the seller's cellars. It was objected, that the bargain was void by the Statute of Frauds, but Lord Ellenborough held that the marking of the casks in the presence of all parties amounted to a delivery, and that though there had been an incipient delivery sufficient to take the case out of the Statute of Frauds, yet that delivery not having been perfected, the plaintiff had a right of action to recover damages for the noncompletion of the contract.

In Hodgson v. Le Bret (b), in 1808, the same Judge ruled that the buyer having written her name on some goods to denote that she had purchased them, though they remained in the seller's shop, took the case out of the statute. Parke, J., has observed, "that in the older cases the Court "did not advert to the words of the statute" (c). Certainly, in Anderson v. Scott (a), Lord Ellenborough, if the words of the statute were present to his mind, must have thought that there might be an actual receipt without any delivery, which is not the popular meaning of the words. It appears from Hurry v. Mangles (d), that Lord Ellenborough considered the seller's rights gone under circumstances but little stronger than those existing in Hodgson v. Le Bret (b) and Anderson v. Scott (a). He seems to have thought that the

(a) Anderson v. Scott, 1 Camp. 235, n.
(b) Hodgson v. Le Bret, 1 Camp. 233.
(c) Smith v. Surman, 9 B. & C. 576, 577.
(d) Hurry v. Mangles, 1 Camp. 452.

circumstance of the buyer exercising acts of ownership with the assent of the seller proved a complete agreement between them to consider the possession of the seller as thenceforward that of a mere agent of the buyer.

In Elmore v. Stone (a), in 1808, the Common Pleas acted upon this principle. In that case the defendant, the buyer of horses under a verbal agreement from the plaintiff, a livery stable keeper, had sent him word that he would have the horses, but that as he had neither servant nor stables, the plaintiff must keep them at livery for him. The plaintiff assented, and moved the horses into another stable (which, however, seems material only as an indication of assent). The Common Pleas, after taking time to consider, held that the bargain was bound. Mansfield, C. J., in delivering the opinion of the Court, said, "After the defendant had said "that the horses must stand at livery, and the plaintiff had "accepted the order, it made no difference whether they "stood at livery in the vendor's stable, or whether they had "been taken away and put in some other stable. The plain"tiff possessed them from that time not as owner (seller?) "of the horses, but as any other livery stable keeper might "have them to keep. Under many events, it might appear "hard if the plaintiff should not continue to have a lien upon the horses which were in his own possession, so long "as the price remained unpaid, but it was for him to consider "that before he made his agreement. After he had assented "to keep the horses at livery, they would on the decease of "the defendant have become general assets; and so if he had "become bankrupt, they would have gone to his assignees. "The plaintiff could not have retained them, though he had "not received the price."

In Blenkinsop v. Clayton (b), in 1817, after a verbal sale of a horse standing in a stable during a fair to which it had been sent for sale, the buyer offered to resell it to a third party, but afterwards refused to go on with the bargain:

(a) Elmore v. Stone, 1 Taunt. 458.
(b) Blenkinsop v. Clayton, 7 Taunt. 597.

the seller brought an action for the price, and on proof of the facts above stated had a verdict subject to leave to move to enter a nonsuit, on the ground that there was nothing to satisfy the statute. The Court of Common Pleas thought that there might be some evidence of a delivery, and therefore granted a new trial, not a nonsuit.

In all these cases there seems to have been ample evidence of an acceptance of the goods, but scanty evidence of any actual receipt, if by that is to be understood a taking of possession; indeed, in Blenkinsop v. Clayton (a), as reported, there seems to have been none. After the decision of the last case, the current of authority set the other way, and it became necessary to prove distinctly that the seller had agreed to hold the goods as the bailee of the buyer.

In Howe v. Palmer (b), in 1820, there was a verbal sale of twelve bushels of tares at 11. per bushel, the buyer to send for them. The buyer said he had seen the tares, and had no immediate use for them; he therefore requested that they might remain at the seller's till seed-time, to which the seller assented. The seller then went home, measured out twelve bushels, and set them aside for the buyer. The King's Bench held that these facts did not amount to an acceptance and receipt. The case was distinguished by the Court from Elmore v. Stone (c), but Bayley, J., expressed a doubt if that case was well decided.

In Tempest v. Fitzgerald (d), in the same year, the facts were, that a horse was sold by parol for 451. ready money; after the sale, the buyer mounted it and tried it, and made some changes in its harness; he then asked the seller to keep it another week; the seller said he would to oblige him; before the week expired the horse died, and the question was who should bear the loss. The King's Bench decided that these acts could not amount to an acceptance and receipt, unless the buyer had a right under the bargain to

(a) Blenkinsop v. Clayton, 7 Taunt. 597.

(b) Howe v. Palmer, 3 B. & A. 321.

(c) Elmore v. Stone, 1 Tauut. 458, ante, p. 29.
(d) Tempest v. Fitzgerald, 3 B. & A. 680.

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