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Conversely, there may be such receipt and acceptance of the physical thing as will satisfy the Statute without any passing of title at all. Thus, in Pinkham v. Mattox,99 the contract provided expressly that the title should not pass upon delivery to the buyer, but should remain in the seller until payment of the price. The buyer received possession of the goods and kept them without objection. Later, on being sued for the price, the buyer set up the Statute and contended that, as he had never received the goods as owner, there was no acceptance within the meaning of the Statute. This contention the court overruled and held that, despite the retention of title in the seller, there was such acceptance as would satisfy the Statute.100

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Change of Position.-Although "receive" as used in the Statute refers to delivery and receipt of the thing itself, rather than to the title, such delivery and receipt do not necessarily require a change of physical position. There is some slight suggestion that not even a change of physical possession is necessary.

livery to a carrier. The result statute although title to all has itself was sound, however, because not passed. McKnight v. Dunlap, the contract involved expressly 5 N. Y. 537. provided that title should not pass 101-Chaplin v. Rogers, 1 East until after an actual inspection by 192, as the opinion is read in the the buyer.

light of tủe facts. Devine v. WarnIn another case, Shindler V. er, 76 Conn. 229; Devine v. Warner, Houston, 1 N. Y. 261, 49 Am. Dec. 75 Conn. 375, “While it is true that 316, counsel attempted to support there may be an acceptance and the proposition that physical de- actual receipt of the goods by livery was not necessary to take the vendee pursuant to a sale, unthe case out of the Statute by accompanied by a manual delivery citing Dewett v. Warner, 12 Mass. or actual change of custody-as in 311, 7 Am. Dec. 74, in which it cases where the vendee is already had been held merely that physi- in possession, or the vendor recal delivery was not essential to tains the custody as bailee of the the passing of title. The court, vendee, thus assuming a new rehowever, recognized the difference lation to the goods-yet the law in requirements.

requires that the proof in such 99–53 N. H. 600.

cases should be clear and Un. 100—Acceptance of a part will equivocal, and establish an actual take the whole contract out of the change of the relation of tho parties to the property." But, actual receipt means such possession by the buyer as “to unequivocally place the property within the power and under the exclusive dominion of the buyer as an absolute owner," Urbanski v. Kutinski 86 Conn. 22.

Since, however, receipt of the goods does refer to the physical thing a physical change of possession should be necessary. And this is in fact the rule, although change of possession does not necessarily mean change of position. In one case the court said, “I am aware that there are cases in which it has been adjudged that where the articles sold are ponderous, a symbolical or constructive delivery will be equivalent in its legal effect to an actual delivery. The delivery of a key of a warehouse in which goods sold are deposited, furnishes an example of this kind.":108 In this case, however, there had never been an actual transfer of anything. When the buyer examined the lumber sold, and agreed to take it, the plaintiff, as seller, said “the lumber is yours. It was on the strength of this that the plaintiff contended the Statute had been satisfied. The court held, that where there was no delivery, either actual or symbolical.” “Mere words of contract unaccompanied by any act can not amount to a delivery. To hold otherwise would be repealing the Statute.

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Mutuality of Intent.—The term “receipt" connotes a giving by some one else. It is suggestive of a reciprocal, two-party affair. Therefore there is no “receipt,' within the meaning of the Statute, of goods which one person has taken, or otherwise acquired, from another person without the latter's consent. There is nothing in such one-sided basis of possession to open the way to proof of a contract. 104

102-Shindler v. Houston, 1 N. Y. 261, 49 Am. Dec. 316.

103-Accord, J. H. Silkman

Lumber Co. v. Hunholtz, 132 Wis. 613, “mere words inter partes will not, under the statute of frauds, effect a change of possession." Ladnier v. Ladnier, 90 Miss. 475, 43 So. 946.

If the buyer is already in possession, mere words may be suffi. cient for only "acceptance" is necessary in such case, Godkin v. Weber, 154 Mich. 207.

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Receipt and Acceptance Both Essential.-Mere actual receipt of the goods, while essential, is not alone sufficient to take the contract out of the Statute. There must be “acceptance" as well as receipt. Thus, mere delivery of a car load of goods onto a buyer's sidetrack, without any act of acceptance by the buyer, does not satisfy the Statute.105 Similarly, delivery by the seller of wood contracted for, upon property owned by the buyer, even though done according to the buyer's direction, is not enough.106 It is not enough even if the buyer subsequently moves the wood from one place to another in order to make a passage way through it.107

Acceptance. As the foregoing discussion indicates clearly that something more than physical receipt of the goods is necessary to constitute “receipt and acceptance,” the question is presented, what constitutes acceptance ? A concise answer is given in one case, 108 as follows:

: “If the vendee does any act to the goods, of wrong if he is not the owner of the goods, and of right if he is owner of the goods, the doing of that act is evidence that he has accepted them.”

The literal statement of this test is in conflict with the proposition that a contract of conditional sale can be taken out of the Statute through the buyer's receipt and acceptance of the goods concerned, even though the title does not pass to him at all.209 But the general idea seems to accord with the cases, and if for “owner” is understood one who has some legal right in the goods themselves the test is correct and readily applicable.

106—Dauphiny & Co. v. Red Poll Co., 123 Cal. 548.

107—Wade v. N. Y. & O. M. Ry, Co., 52 N. Y. 627.

104—Washington Ice

Co. V. Webster, 62 Me. 341, 16 Am. Rep. 462; Matthieson Co. v. McMahon, 38 N. J. L. 536.

105—Calvert v. Schultz, 143 Mich. 441; Eichberg Co. v. Paper Co., 119 Mo. Ap. 262, delivery to warehouse of a terminal company and notification to buyer; Kemen. sky v. Chapin, 193 Mass. 500.

108—Leonard V. Medford, 85 Md. 666, 37 L. R. A. 449, quoting from Parker v. Wallis, 5 El. & Bl. 21.

Certainly there is authority to the effect that mere physical receipt by the buyer himself, and even use by him, as for the purpose of testing the goods, does not necessarily constitute an acceptance.110

On the other hand, if the buyer, having actually received the goods, does assert rights in them there may be an “acceptance,” even though such assertion of right is on a theory other than that of the contract alleged. For instance, in Durkee v. Powell,111 the defendant had bought a house. The seller claimed, and the court agreed, that the shades and screens had been sold as personalty by an independent contract, although to the same buyer. The defendant took possession of the screens, etc., along with the house and, denying the second contract, asserted a right of possession of them as part of the realty. The court held this to be a sufficient receipt and acceptance to take the contract out of the Statute. It should be noted that the receipt in this case was by virtue of the contract, although the acceptance was under a different claim.

If such a decision seems still to leave the question of contract to the possibly perjured testimony of the parIts pur

case.

109-Pinkham V. Mattox, 53 N. H. 600.

110—Lloyd v. Wright, 25 Ga. 215; Wainscott v. Kellogg, 84 Mo. Ap. 621; Hatch v. Gluck, 93 N. Y. S. 508; Mechanical Boiler Cleaning Co. v. Kellner, 62 N. J. L. 544, 559, "Another proposition that is vouched for upon principle and by the weight of authority is that possession itself is not evidence of an acceptance, and that a compliance with the statute would require an acceptance by the vender

as owner." Other authority for this proposition is cited in the

As a matter of fact, however, the discussion in this case was unnecessary, because the buyer had never "accepted" the plaintiff's offer to sell and there was, in consequence, no contract of sale at all. Darnell v. Young, 105 Md. 280, buyer took control of goods only for purpose of sending them back to seller.

111-77 N. Y. S. 368.

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ties, it must be borne in mind that, unlike the written memorandum, the receipt and acceptance of goods is not supposed to show what the contract was. pose is merely to furnish a basis for supposing that there was really some sort of a contract between the parties. The way is then opened for evidence, oral or otherwise, as to just what the contract was. 118

There is no rule, and can be none, as to what sort of act will or will not indicate acceptance. As the test above quoted says, any act that indicates an assertion of legal interest in the goods may serve for acceptance. As the possible acts so indicating are multitudinous, they can not and need not be legally hall-marked. The whole matter is a question of fact in each particular case—the fact of whether the act done indicates an assertion of right in the goods. Many courts answer this as a judicial conclusion.118 Many courts, however, leave the question to be decided by the jury. 114

-Acceptance by Agent.—The receipt and acceptance need not be by the buyer personally, but may be done through an agent. 115

112-Slater Brick Co. v. Shakel. ton, 30 Mont. 390.

In Edgar v. Breck & Sons, 172 Mass. 581, the acceptance was made under such circumstances as to refute the idea of a warranty by the seller. The court held, however, that the acceptance did not constitute a new contract, but only opened the way for proof of the real contract which in fact contained a warranty.

113—Koster V. Koedding, 68 N. Y. S. 794, holding that keeping a horse for 24 hours and using him was an acceptance; MacEvoy V. Aronson, 92 N. Y. S. 724, inferred from unreasonable delay in returning physical possession; Adams County etc. Co. v. Walla

Walla etc. Co., 64 Wash. 285, id; Godkin v. Weber, 154. Mich. 207; Richards v. Burrows, 62 Mich. 117, causing wood to be repiled; Schmidt v. Thomas, 75 Wis. 529, oral statements.

114-Garfield v. Paris, 96 U. S. 557; Pinkham v. Mattox, 53 N. H. 600; Jarrell v. Young, 105 Md. 280.

115—Daniel v. Hannah, 106 Ga. 91; Wilcox etc. Co. v. Green, 72 N. Y. 17; Jones v. Mechanics Bk., 29 Md. 287, 96 Am. Dec. 533; Townsend v. Hargraves, 118 Mass. 325, through attornment of third person in possession.

An administrator is not an agent, for such a purpose, Smith V. Brennan, 62 Mich. 349.

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