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gave an oral order for cider to be forwarded to his residence, and it was sent there by the wagon, but the defendant refused to take it in, and caused it to be lodged in an adjoining warehouse not belonging to him, where it remained, and no notice was given by the defendant to the vendor of the defendant's intention not to take the cider, it was held that there had been no acceptance and actual receipt of the cider by the defendant. (≈) But, if a purchaser directs goods to be taken to a place of deposit indicated by him, and they are accordingly sent there, it is the same as if they are sent to his own house. (a) And a purchaser may, by his conduct and course of dealing with the carrier, convert the latter into an agent for custody holding the goods on his, the purchaser's, behalf. (6)

562. Part acceptance and actual receipt binding the contract. If the defendant receives a portion of the bulk, and keeps it, he is responsible in damages for the non-acceptance of the whole of the commodity he agreed to buy. (c) But, where the acceptance of a part of goods sold is relied upon to take the case out of the statute of frauds, it must be an acceptance of a part of goods bought under one entire contract. Where, therefore, the traveler of a mercantile house,

(2) Nicholle v. Plume, I C. & P. 272.

(a) Dodsley v. Varley, 12 Ad. & E. 532.

(b) Post. Bushel v. Wheeler, 15 Q. B. 442.

(c) Gilliat v. Roberts, 19 L. J., Ex. 410.

'Hunter v. Wright, 12 Allen, 548; or delivering the key of a warehouse, may be a delivery of the goods; Wilkes v. Ferris, 5 Johns. 335; Chappel v. Marvin, 2 Aikens, 79; or "less than this, where the goods are bulky, as for instance, a quantity of timber floating in a boom, or a large stack of hay." 3 Parsons on Contracts, 43; Jewett v. Warren, 12 Mass. 300; Boynton v. Veazie, 24 Me. 286; Gibson v. Stevens, 8 How. 384; Calkins v. Lockwood, 17 Conn. 154. But see Shindler v. Houston, I Denio, 48; 1 Comst. 261.

received an order in the country from a carpet-manu facturer for a cask of cream of tartar at a fixed price. and also an order for two chests of lac dye, provided they could be furnished at a given price, and reserved to his employers a right to decline to fulfill the contract for the lac dye at the price named, if they should think fit, and, the cream of tartar and the chest of lac dye being forwarded, the manufacturer accepted the cream of tartar, but refused to take the lac dye, it was held that there were two distinct and independent contracts of sale, and that the acceptance of the cream of tartar could not take the contract as to the lac dye out of the operation of the statute. (d) Where a purchaser had ordered two dozen of port wine, and the same quantity of sherry, to be returned if not approved, and the vendor sent four dozen of each, and the purchaser kept thirteen bottles and returned the rest, it was held there was no part acceptance of the whole quantity, so as to take the wine returned out of the operation of the statute. (e) Generally speaking, however, when a person goes into a shop and buys various different articles at the same time, he does not make as many different contracts as there are articles purchased; (ƒ) but there is one contract for the whole, and the acceptance and receipt of any one of the articles so purchased will take the contract as to all of them out of the operation of the statute.1 Where the

(d) Price v. Lea, 2 D. & R. 295; I B. & C. 158.

(e) Hart v. Mills, 15 M. & W. 85; 15 L. J., Ex. 200.


(ƒ) Alderson, B., 12 M. & W. 38 ; 3 M. & W. 178. Baldey v. Parker, 3 D. & N. 220; 2 B. & C. 37.

3 Parsons on Contracts, 44; in general, a delivery of a part is a delivery of the whole, "if it be an integral part of one whole, but not if many things are bought and sold as distinct articles, and some of them are delivered, and some of them are not." Id.; Seymour v. Davis, 2 Sandf. 239; Davis v. Moore,

traveler of a steel manufacturer, at. Sheffield, took ar oral order from an edge-tool maker, at Birmingham, for thirty-five bundles of common steel, at 34s., and five bundles of cast steel, at 48s., it was held that this was one entire contract, and that the acceptance of the common steel took the cast steel out of the operation of the statute. (g) But, where growing crops were put up to auction in several lots, and separately knocked down to a bidder at separate prices, it was held that there was a distinct contract of sale as to each lot. (h)

Where a party under one contract purchases goods ready made, and orders others to be made, an acceptance of the former goods is a sufficient compliance with the Statute of Frauds and the 9 Geo. 4, c. 14, s. 7. (i) If after a purchase, the purchaser draws samples from the bulk of the commodity, this amounts to an acceptance of it. (k) Certain sugars in a warehouse were advertised for sale by auction, and samples of half a pound weight from each hogshead, drawn after the sugars had been weighed, were produced to the assembled bidders, and after the biddings were closed, the samples were delivered to and accepted by each purchaser, as part of his purchase, to make up the quan

(g) Elliott v. Thomas, 3 M. & W. 176. Rohde v. Thwaites, 9 D. & R. 293 6 B. & C. 388. Bigg v. Whisking, 14 C. B. 198.

(i) Ante. Lord Abinger, C. B. Scott v. Eastern Counties Railway Company, 12 M. & W. 38.

(k) Gardner v. Grout, 2 C. B., N.

(4) Roots v. Lord Dormer, 4 B & S. 340. Ad. 77; 1 N. & M. 667.

"Where several

13 Me. 424; Mills v. Hunt, 20 Wend. 431. owners make a joint sale, and one of them sells a part of his portion, the delivery of this is said to satisfy the statute as to all." 3 Parsons on Contracts, 44; Field v. Runk, 2 N. J. 523, and as to whether the delivery of the part is intended to be a delivery of the whole, is a question for the jury; Pratt v. Chase, 40 Me. 269.

tity and weight of each lot, as specified in the catalogue, and it was held that the delivery and acceptance of the sample were an acceptance and receipt of part of the things sold, so as to remove the contract from the operation of the statute. (7)

563. The acceptance takes the whole contract out of the statute, leaving it open to the parties to supply the terms of the bargain by oral evidence.— If, therefore, the contract is made defeasible on certain conditions, the conditions will stand good as part of the contract. Where a mare was sold on the terms that, in case she should prove in foal, she should be returned together with part of the price; and the mare was delivered and accepted, and afterwards proved to be in foal, but the purchaser refused to return her, it was held that the acceptance took the whole agreement out of the statute of frauds, and that the plaintiff might sue the defendant for the refusal to return the mare. (m)

564. What is earnest and part payment within the second exception of the statute.-The giving of any quantity of money, however small, by way of earnest or part payment, has the effect of taking the whole contract out of the operation of the statute. It binds the bargain as between the parties, provided the other requisites necessary to the completion of a contract of sale have been duly complied with, and operates as a transfer of the right of property to the purchaser. (2) The vendor can not sell to another, until he has requested the vendee to remove the goods and pay the price, and the latter has neglected

(1) Hinde v. Whitehouse, 7 East, 670. Talver v. West, Holt, 178.

(m) Williams v. Burgess, 10 Ad. & E. 499. Tomkinson v. Staight, 17 C.

Collis v.

B. 707; 25 L. J., C. P. 85.
Botthamley, 7 W. R. 87.
(n) Bach v. Owen, 3 T. R. 409.
Blakey v. Dinsdale, 2 Cowp. 664.

to comply with the requisition within a reasonable period. (0) If there is a bargain for the sale of goods at a certain price, and subsequently an agreement that a debt due from the purchaser shall be wiped off from the amount of the price, and the debt is accordingly released and discharged, this may be equivalent to earnest and part payment. () The civil law respecting earnest provides that, "if earnest has once been given, the sale is perfected, whether the contract be in writing or be made merely by word of mouth." "If the buyer neglects to perform the contract, he loses what he has paid as earnest; and, if the seller makes default, he is bound to render to the buyer double the value of what he has received. But the price of the thing sold must always be fixed; for without a price there can be no sale." (q)

565. Transfer of the right of property in the thing sold. A contract for the sale of goods, wares, and merchandise, of the value of less than £10, and so not requiring authentication by a signed writing, or duly authenticated in the mode previously pointed out, may operate as a direct transfer of the ownership and right of property in the thing sold to the purchaser, or may amount only to an agreement for a future transfer, giving the purchaser a right of action against the vendor for a breach of contract, but not effecting any alteration of ownership. When the bargain operates as a transfer of ownership, the sale is perfect and complete; when it amounts only to an agreement to procure or manufacture an article of a given character and description, and then transfer it to the purchaser, and does not effect any immediate

(0) Langford v. Administratrix of 306, 505; 16 L. J., Ex. 120. Tyler, 6 Mod. 162.

(P) Walker v. Nussey, 16 M. & W.

(9) Instit. lib. 3 tit. 24. Cod. iv. tit. 38, 40.

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