§ 1364. What is meant by acceptance.-The idea of acceptance is one involving somewhat complex elements. It has both a mental and physical aspect. It means more than merely to receive the goods, for the latter is purely a physical act. It requires also the element of mental assent. It bears the same relation to receiving the goods which transferring the title to them bears to the merely physical act of delivery. It signifies the mental and physical consent and assent of the buyer to the transfer of title and delivery of possession of the goods in question by the seller to the buyer in pursuance and performance of the contract.

§ 1365. In what cases requisite.-Acceptance is an incident of all sales, whether present or executory; but the time, method and circumstances differ in the two cases, and suggest separate consideration.

1. Acceptance in Case of Present Sale.

§ 1366. Acceptance here contemporaneous with the contract. Acceptance in the case of a present sale of specific and ascertained goods is, as a mental act at least, contemporaneous with and an element of the contract of sale itself. As has been already seen,' the assent of the parties to the sale of specific goods is, as between themselves, sufficient to transfer the title. By assenting to the sale, therefore, the buyer assents to accept and does accept the title to those specific goods, and the sale is consummated at once on both sides. Nothing is now left but the physical acts of delivery and receipt, which will also be practically contemporaneous with the sale, unless, for some reason, they are expressly postponed. If so postponed, the duty still remains upon the seller to deliver and upon the buyer to receive the goods. These acts are substantially the precise equivalents of each other, and the consideration in an earlier chapter of the seller's duty to deliver leaves little further to be said regarding the buyer's duty to receive.

1 See ante, § 483.

2 See ante, § 1116 et seq.

§ 1367. Receipt where delivery postponed.— Where delivery of specific goods is postponed, as suggested in the preceding section, it is the duty of the buyer to receive them at the time and place fixed for their delivery. What this time and place are have already been determined.1

Little of discretion is here left to be exercised by the purchaser. The goods are his, and he should receive them as agreed. All occasion for discretion is not, however, excluded. The identity of the goods tendered with those purchased is open for examination, and the buyer is clearly under no obligation to receive any others than those so agreed upon. The right of examination and reasonable opportunity to make it, when necessary to determine this identity, must clearly belong to the purchaser.

The condition of the goods tendered may also be open to determination; for the buyer is not bound to receive the goods unless they are in the condition which the contract contemplated; as where the seller, after the sale and before delivery, is to do something with or to them before they are to be received.

§ 1368. Waiver of irregular delivery. Although the buyer is thus not bound to receive other goods than those purchased; although he is not bound to receive them at a different time or place than that agreed upon; although he is under no obligation to accept delivery in a different manner or condition than that specified, he may waive his right in any of these cases and receive the goods notwithstanding the irregularity. This waiver need not be express; it may be implied from circumstances, and it will be so implied whenever the conduct of the buyer is inconsistent with an intention to reject the goods. The most common form of waiver is that of retention without objection, and the rule is abundantly settled that if, without objecting within a reasonable time, the buyer does receive and retain the goods, he will be deemed to have waived the irregularities and he cannot afterwards reject the goods.?

1 See ante, §§ 1124 et seq., 1129 et seq.

2 See post, §§ 1380, 1381.

2. Acceptance in Case of Executory Contract.

§ 1369. Necessity and nature of acceptance here.— Acceptance in the case of executory contracts for the sale of unascertained goods involves an element of great importance, no longer open in the case of the present sale of a specific chattel. At the time of making the executory contract no title to any specific chattel passes thereby, for the reason that the chattel has not yet been ascertained. It remains, as has been seen, for the seller, on his part, to appropriate a chattel to the contract, and for the buyer to assent to that appropriation.' Resolved into its elements, this transaction will be found to involve four elements of importance: appropriation of the chattel and its delivery, by the seller; assent to that appropriation and the receipt of the chattel, by the purchaser. Appropriation and delivery by the seller have already been considered; assent to the appropriation and the receipt of the goods by the buyer remain to be considered. Taken together they constitute the duty of the buyer.

§ 1370. What is meant by acceptance in these cases.- Performance by the buyer, therefore, in its fullest form, is clearly in these cases an act involving two distinct elements — mental assent and physical reception. Either may exist without the other. The buyer may assent that the goods selected by the seller are the goods to which the contract is to attach-which satisfy the contract and the title to which is therefore to vest in him— without actually receiving them into his possession. On the other hand, he may actually receive possession of certain goods without assenting that they are the ones contemplated by the contract. To the former act alone the term

1 See ante, § 721 et seq. 2 See ante, § 1116 et seq. 3 Thus, in language often quoted with approval, Mr. Benjamin says (Sale, 6th Am. ed., § 703): "When goods are sent to a buyer in performance of the vendor's contract, the buyer is not precluded from object

ing to them by merely receiving them; for receipt is one thing and acceptance another. But receipt will become acceptance if the right of rejection is not exercised within a reasonable time (Bianchi v. Nash, 1 M. & W. 545; Beverley v. Lincoln Gas Co., 6 A. & E. 829; Couston v. Chap

"acceptance" is properly applied. It is so used in the statute of frauds, where the buyer is required to receive and accept the goods; and undoubtedly in the strictest sense the term "acceptance" is to be so distinguished.

§ 1371. As matter of fact, however, the term is used with at least three different significations. First, in the sense above mentioned, that the buyer is willing to and does take the title to the goods proffered as being the ones both in kind and quality which he is bound to accept under the contract. Secondly, where the buyer receives the goods into his possession, and then so deals with them that the law declares that he must be presumed to be satisfied with them. Thirdly, where the buyer receives the goods into his possession, and then so deals with them that the law declares that he has accepted the title so that he cannot return them, but that he has not so completely assented to them as to preclude him from asserting that they are not of the kind or the quality which the contract called for and recovering damages therefor.

The application and effect of these various forms will be dealt with in the succeeding sections.

§ 1372. What buyer is bound to accept-Difference in quality, quantity or kind.-It has been seen under the head of Delivery that it is the duty of the seller to deliver or offer for delivery such goods only as the contract provided for, and the buyer is under no obligation to accept any others. If, therefore, the seller tenders goods differing in quality, quantity or kind from those which the contract contemplated, the buyer is under no obligation to accept them. This subject has

man, L. R. 2 Sc. App. 250); or if any act be done by the buyer which he would have no right to do unless he were owner of the goods."

So in Schloss v. Feltus, 96 Mich. 619, 55 N. W. R. 1010, it is said: "For the purpose of an acceptance of goods, the vendee must have had an

opportunity of exercising his judg ment with respect to the articles sent. The acceptance must be something more than a mere receipt; it means some act done after the vendee has exercised or had the means of exercising his right of rejection."

1

been so fully considered in the chapter on Delivery 1 that it is unnecessary to repeat it here.

§ 1373. When and where buyer is bound to accept.- The question of the time and place of acceptance corresponds with the question of the time and place of delivery — the buyer being bound to accept at the time and place at which the seller is bound to deliver. But this subject, like those mentioned in the preceding section, has been so fully treated in the chapter on Delivery that further consideration here is not necessary.

§ 1374. Waiver of irregular delivery.- Notwithstanding the right of the buyer to insist upon performance by the seller according to the contract, he may waive his right either expressly or impliedly, by accepting something different. Much of the succeeding sections will be devoted to this question of waiver by acceptance; but it may be said, in general terms, that the buyer may waive the provisions of the contract as to quality, kind or quantity; he may accept and become bound to pay for goods he never ordered; he may accept more or less than the stipulated quantity; he may accept goods of a

1 See ante, § 1154 et seq. The buyer is, of course, not bound to accept something different from what he ordered) O'Donohue v. Leggett, 134 N. Y. 40, 31 N. E. R. 269; Diversy v. Kellogg, 44 Ill. 114, 92 Am. Dec. 154, and cases cited ante, § 1154 et seq., above referred to); but the buyer cannot reject the goods simply because they are not packed as usual where the manner of packing is immaterial. Forke v. Arms Co., Tex. ——, 19 S. W. R. 550.

Where an article delivered does not correspond to the description under which it was sold, the vendee is not bound to accept, and may recover whatever of the purchase price he has paid. Meader v. Cornell (1896), 58 N. J. L. 375, 33 Atl. R. 960.

2 See ante, §§ 1124, 1129 et seq. See also post, § 1383 et seq.

3 Liability for goods not ordered imposed by receiving and retaining them without objection within a reasonable time. Hobbs v. Massasoit Whip Co. (1893), 158 Mass. 194, 33 N. E. R. 495; Indiana Mfg. Co. v. Hayes (1893), 155 Pa. St. 160, 26 Atl. R. 6; Thompson v. Douglass (1891), 35 W. Va. 337, 13 S. E. R. 1015; Harworth v. Truby (1890), 138 Pa. St. 222, 20 Atl R. 942.

4 Excess in quantity waived by acceptance. Ante, § 1159. But see Bedell v. Kowalsky (1893), 99 Cal. 236, 33 Pac. R. 904.

Deficiency in quantity waived by acceptance. Ante, § 1161; Williamette Steam Mills Co. v. Union Lum