sufficient acceptance, so long as the buyer continues to have a right to object either to the quantum or the quality of the goods. Hanson v. Armitage, 5 B. & A. 559. Smith v. Surman, 9 B. & C. 561. And it seems that though the purchaser has used (in the opinion of the jury) more of the goods than was necessary for the purpose of trying experiments to ascertain if they were of proper quality, that does not amount to an acceptance. Elliott v. Thomas, 3 M. & W. 170. Where the defendant bought of the plaintiff's agent twelve bushels of tares (part of a larger quantity in bulk), and the agent measured the twelve bushels and set them apart for the vendee to remain till called for, it was held that there was no acceptance. Howe v. Palmer, 3 B. & A. 321. So where A. agreed to purchase a horse from B. for ready money, and to take him within a time agreed upon, and about the expiration of that time A. rode the horse (by way of trial), and gave directions as to its treatment, &c., but requested that it might remain in B.'s possession for a further time, at the expiration of which he promised to fetch it away, and pay the price these circumstances were held not to constitute an acceptance. Tempest v. Fitzgerald, 3 B. & A. 680. And when a horse was sold, and no time fixed for payment, and the horse was to remain with the vendors for twenty days without any charge to the vendee, at the expiration of which time the horse was sent to grass by the direction of the vendee, and by his desire entered as the horse of one of the vendors, it was held that there was no acceptance. Carter v. Toussaint, 5 B. & A. 855. So a delivery of goods to a wharfinger, who has been accustomed to forward goods from the plaintiff to the defendant, which goods are lost while in the possession of the carrier, is not an acceptance. Hanson v. Armitage 5 B. & A. 557. And where goods bought abroad were delivered at a foreign port on board a ship chartered by the purchaser, this was held to be no acceptance. Acebal v. Levy, 10 Bing. 376.; S. C. 4 Moore & S. 217. When the purchaser appointed the mode in which the goods should be conveyed, and directed a third person, in whose possession the goods were, to see them delivered and measured, and put up properly, these circumstances were held not to amount to an acceptance. Astey v. Emery, 4 M. & S. 262. The same principle was recognised in the following case: A. went to the shop of B. & Co., and contracted for the purchase of various articles, each of which was under the value of 10%. but the whole amounted to 70l. A separate price for each article was agreed upon. Some A. marked with a pencil, others were measured in his presence, and others he assisted to cut from larger bulks. He then desired that an account of the whole might be sent to his house, and went away: a bill of parcels was accordingly sent, together with the goods, which A. refused to accept. It was held that this was all one contract, and therefore within the Statute of Frauds ; and that there was no acceptance of the goods to take the case out of that statute. Baldey v. Parker, 2 B. & C. 37. So where a hogshead of wine in the warehouse of the London Dock Company was sold for 137., and a delivery order given to the vendee, but there was no assent on the part of the Dock Company to hold the wines as the agents of the vendee, it was held that there was no actual acceptance within the statute. Bentall v. Burn. 3 B. & C. 423.; and see Phillips v. Bistolli, 2 B. & C. 511. Where goods of the value of 1447. were made to order, and remained in the possession of the vendor at the request

of the vendee, with the exception of a small part which the latter took away, it was held that there was no actual acceptance of these goods by the buyer within the 17th section of the Statute of Frauds, and that the plaintiff was not entitled to recover on the count for goods sold and delivered; Thompson v. Maceroni, 3 B. & C. 1.; but quære, for the statute only requires an acceptance of part; and this case was perhaps decided on the form of declaration, which was for goods sold and delivered. And see Elliott v. Thomas, 3 M. & W. 170. post, p. 281. Where A. employed B. to construct a waggon, and while it was in B.'s yard unfinished, A. employed a third person to fix upon it some iron work and a tilt; it was held that this did not amount to an acceptance; but, per Tindal C. J., it might have been otherwise if these acts had been done after the waggon was completed. Maberley v. Sheppard, 10 Bing. 99. The traveller of A. in London having called upon B. in the country for orders, B. gave an absolute order for a quantity of cream of tartar, and offered to take a quantity of lac dye at a certain price; the traveller said the price was too low, but he would write to his principal, and if B. did not hear from him in one or two days, he might consider that his offer was accepted. A. never wrote to B., but sent all the goods; it was held that this was not a joint order for all the goods, so as to make the acceptance of the cream of tartar the acceptance of the lac dye also within the statute. Price v. Lea, 1 B. & C. 156.

The circumstances in the following cases were held to constitute an acceptance within the statute. The defendant bought a quantity of hay from the plaintiff, and sold it to another person, by whom it was taken away it was held that the jury might presume an acceptance by the defendant. Chaplin v. Rogers, 1 East, 193. The defendant bought two horses from the plaintiff, a livery-stable keeper, and desired him to keep them at livery for him; it was held that the plaintiff, by assenting to this order and changing the stables in which the horses had been kept to his livery stables, had relinquished his lien, and that there was a constructive delivery of them to the defendant. Elmore v. Stone, 1 Taunt. 458. Wool, bought by defendant, was removed to the warehouse of a third person M. by his direction, and weighed and packed for him; this was held an acceptance, though the course of dealing was that it should not be taken out of M.'s warehouse till payment. Dodsley v. Varley, 12 A. & E. 632. Where the goods sold were in the defendant's possession at the time of the sale, a dealing with them by the defendant, and an account rendered to the plaintiffs by defendant, debiting himself with the price, are evidence of an acceptance by defendant. Edan v. Dudfield, 1 Q. B. 302. A. bargained for a horse then in a stable, and soon afterwards brought in a third person, and stated to him that he had bought the horse, and offered to sell it to him for a profit of 57.; it was held that it ought to be left to the jury to say whether this was, or was not, a delivery and acceptance. Blenkinsop v. Clayton, 7 Taunt. 597.; and see Phillips v. Bistolli, 2 B. & C. 511. Where the purchaser of goods at the time of sale wrote his own name upon a particular article, Lord Ellenborough ruled that, if his purpose was to denote that he had purchased it, and to appropriate it to his own use, it was a sufficient acceptance within the statute. Hodg son v. Le Bret, 1 Camp. 233.; Anderson v. Scot, ib. 235. (n).; but see Baldey v. Parker, 2 B. & C.37. antè, p. 279. When the goods are ponderous and incapable of being handed over from one to another, there

need not be an actual delivery, but it may be done by what is tantamount; such as the delivery of a key of the warehouse in which the goods are lodged, or by delivery of other indicia of property. Per Ld. Kenyon C. J., Chaplin v. Rogers, 1 East, 194. Elmore v. Stone, 1 Taunt. 460. A written order given by the seller of goods to the buyer, directing the person in whose care the goods are to deliver them to the buyer, is sufficient within the statute; Searle v. Keeves, 2 Esp. 598.; provided the person, to whom it is directed, accept the order for delivery, and assent to hold the goods as the agent of the buyer. Bentall v. Burn, 3 B. & C. 426.; see Salter v. Woollams, 2 M. & G. 650. Where A. agreed to sell to B. twenty hogsheads of sugar then in bulk, and filled up and delivered four, and afterwards filled up the remaining sixteen, and gave notice to the defendant, who said he would take them away as soon as he could, this was held equivalent to an actual acceptance of the sixteen hogsheads. Rohde v. Thwaites, 6 B. & C. 388. When a joint order is given for several classes of goods, the acceptance of one class is a part acceptance of the whole under this section. Elliott v. Thomas, 3 M. & W. 170. The delivery of a sample, if considered to be part of the thing sold, is a sufficient acceptance; but otherwise, where it is a sample merely, and forms no part of the bulk. Talver v. West, Holt, N. P. C.178.; Cooper v. Elston, 7 T. R. 14.; Hinde v. Whitehouse, 7 East, 558. tomary forms of concluding bargains, as where the purchaser draws the edge of a shilling across the hand of the vendor, and returns the money into his own pocket, are not equivalent to earnest, or part payment within the statute. Blenkinsop v. Clayton, 7 Taunt. 597.

Cus

Where goods above 101. are sent for approval, the party must object within a reasonable time, or he will be deemed to have accepted them. Coleman v. Gibson, 1 M. & Rob, 168. See antè, p. 270.

The defence of the Statute of Frauds is open on the plea of nonassumpsit, Semb. Fricker v. Thomlinson, 1 M. & G.772.

Value.] When the goods have been sold without any agreement as to the price, their value must be proved. If the vendor of goods is only able to prove the delivery of a package without any evidence of the contents, it will be presumed as against him that it was filled with the cheapest commodity in which he deals. Clunnes v. Pezzey, 1 Camp.8. If a seller agrees to sell a machine at a certain price and puts in materials superior to those contracted for, the purchaser is neither bound to pay a higher price, nor to return the machine. Wilmot v. Smith, 3 C. & P. 455. Where goods have been sold and delivered to be paid for by bill at a certain date, if the bill be not given, the plaintiff may recover in this action, as part of the stipulated price, interest from the time the bill would have become due. Farr v. Ward, 3 M. & W, 25.

Defence.

Evidence in reduction of damages.] It was formerly a question in this action, whether the defendant could give the bad quality of the article in evidence in reduction of the value claimed by the plaintiff.

Such evidence is clearly admissible where the plaintiff claims only on a quantum meruit, and no price has been agreed upon. Basten v. Butter, 7 East, 479.; Farnsworth v. Garrard, 1 Camp. 38. And, though a dif

ferent practice formerly prevailed, it is now held that, in all cases of goods sold at a fixed price with a warranty, or agreed to be supplied according to a special contract, it is competent for the defendant in this form of action to shew how much less the subject-matter of the action is worth by reason of the breach of warranty or contract: any further damages sustained by the defendant beyond the difference of value must be recovered in a cross action. Mondel v. Steel, 8 M. & W.858. And it seems that the acceptance and non-return of the goods by the defendant will not preclude this defence, though it may be evidence in favour of the plaintiff of a fresh contract to pay on the footing of a quantum valebant. Ibid. 871. S. C.; Groundsell v. Lamb, 1 M. & W. 352. And the defendant may avail himself of the defence of the inferior quality or worthlessness of the goods under the plea of non assumpsit. Cousins v. Paddon, 2 C. M. & R. 547.; Dicken v. Neale, 1 M. & W.556. Where the contract contains a clause releasing the plaintiff from all responsibility in respect of the goods supplied after a certain time of trial, the purchaser cannot, after the time is passed, prove a latent defect in them in reduction of the price; there being no fraud alleged. Sharp v. Great Western Railway Co. 9 M. & W. 7.

Action brought before credit expired.] It was once doubted whether, since the New Rules, it could be shown under non assumpsit that the action had been brought before the time of credit expired. Edmunds v. Harris, 2 A. & E. 414. The court of Common Pleas held the evidence admissible under the plea of non assumpsit in Gardner v. Alexander, 3 Dowl. P. C. 146.; and it has been since repeatedly so decided; Broomfield v. Smith, 1 M. & W. 542.; Webb v. Fairmaner, 3 M. & W. 473. In the last case it was held that, in calculating the time of the credit, the day of the sale must be excluded; and therefore, where goods were sold on the 5th of October to be paid for in two months, an action could not be commenced till after the expiration of the 5th of December, and a writ issued on that day was premature.

Where goods are fraudulently bought on credit, the seller cannot sue for goods sold and delivered before the credit has expired, though he may maintain trover. Ferguson v. Carrington, 9 B. & C. 59.; Strutt v. Smith, 1 C. M. & R. 312. A person purchased goods, and agreed to pay for them in three months by a bill at two months, which bill he afterwards refused to give: an action for goods sold was held not to lie till the expiration of five months. Mussen v. Price, 4 East, 147.; Lee v. Risdon, 2 Marsh. 495. So when goods are sold at six months' credit, payment to be then made by a bill at two or three months at the purchaser's option; this is in effect a nine months' credit. Helps v. Winterbottom, 2 B. & Ad. 431.; Price v. Nixon, 5 Taunt. 338. But where goods were sold at three months' credit, the vendor agreeing to take the vendee's bill at three months' date at the end of the first three months if he wished for further time; and the vendee at the end of the three months did not give such bill; Lord Ellenborough held that the vendor might bring an action for goods sold and delivered immediately. Nickson v. Jepson, 2 Stark. 227. And where bills, given for goods, are dishonoured, the vendor may sue for the price immediately; Hickling v. Hardey, 7 Taunt. 312.; Mussen v. Price, 4 East, 151.; provided the bills are in the hands of the seller, for if they are in the hands of third persons, that is a defence to the action; for

the defendant may be called upon by those persons to pay the bills. Kearslake v. Morgan, 5 T. R. 513.; Burden v. Halton, 4 Bing. 455. When the buyer gives a promissory note of another person without indorsing it, the vendor may, on its dishonour, sue for the price of the goods without proving presentment to the maker, the note being produced by himself. Goodwin v. Coates, 1 M. & Rob. 221. So where the vendor takes a bill on a wrong stamp, in suing for the price of the goods he need not prove the dishonour of the bill. Cundy v. Marriott, 1 B. & Ad. 696. But if he makes a bill his own by laches, it operates in satisfaction of the preceding debt; or if he makes it his own by altering it in a material part. Alderson v. Langdale, 3 B. & Ad. 660. If, by the contract, it is agreed that a bill at a certain date shall be given, it operates as a giving of credit; and, although no bill should be given, the seller cannot sue the purchaser for goods sold and delivered before the period when the bill, if given, would have become due. Mussen v. Price, 4 East, 151.

As to the defence of illegality in this action, vide post, “ Assumpsit — Defence."

ASSUMPSIT FOR WORK AND LABOUR.

In an action for work and labour, the plaintiff's proofs are, 1. The contract, express or implied; 2. The performance of the work and labour; and 3. The value, if the remuneration is not ascertained by the contract.

The contract.] Although there be a special contract, the plaintiff is permitted in some cases to recover upon the general indebitatus count. And, generally, where there is a special agreement the terms of which have been performed, it raises a duty for which an indebitatus assumpsit will lie. Bull. N. P. 139.; Robson v. Godfrey, Holt, N.P.C.237.; Studdy v. Sanders, 5 B. & C. 638. Whenever the duty of the defendant, arising upon the execution of the consideration, is simply to pay money, the usual and safest mode of pleading is to declare in indebitatus assumpsit; as in the case of goods sold, work and labour done, and other cases. Per Park J., Streeter v. Horlock, 1 Bing. 37. The disadvantage of suing in this form is, that the defendant will be able to shew, on the general issue, grounds of defence which would require special pleas if the plaintiff declared specially.

If there is a special agreement, and the work has been done and adopted by the defendant though not pursuant to such agreement, the plaintiff may recover upon a quantum meruit; for otherwise he would not be able to recover at all. B. N. P. 139.; Burn v. Miller, 4 Taunt. 745. But the defendant may refuse to take to the subject-matter of the plaintiff's work and labour where there is a deviation from the special contract; and, in such case, the plaintiff cannot recover even on a quantum meruit. Ellis v. Hamlen, 3 Taunt. 52. The plaintiff contracted to build cottages by the 10th of October, and they were not finished until the 15th; the defendant having accepted the cottages, it was held that the plaintiff might recover the value on a general declar