intention of the vendee is to accept the goods. Where a buyer deals with the goods as his own, that is good evidence of constructive acceptance. Any act on the part of the buyer indicating dominion over the goods may amount to an acceptance, as by mortgaging or selling them.

9

The Sales Act10 provides that a buyer shall be deemed to have accepted the goods when he does any act in relation to them inconsistent with ownership in the seller, or if he intimates his acceptance in any way to the seller or keeps them an unreasonable time. Acceptance of the goods by the buyer does not discharge the seller from liability for breach of any promise or warranty in the contract. But the buyer must give notice of such breach within a reasonable time.

Delay in Acceptance. How long a purchaser is entitled to keep goods after their receipt before acceptance is a question which has frequently been before the courts without resulting in any definite time being fixed. Obviously what is reasonable in the case of one article might not be so in the case of another. It might be that an article should be accepted or rejected within a day after receipt, as in the case of perishable goods. In a case where a country merchant bought umbrellas which were received by him in the dry season, and the box containing them was not opened until the rainy season some time later, it was held there was no acceptance, and as the merchant found that the umbrellas sent him were green cotton umbrellas adapted for sunshades, he was justified in returning them. Detention of the goods for an unreasonable time without sufficient ground will be regarded as an acceptance.1

11

Receipt a Question of Fact. The fact of receipt is not always easily determined. At the time of the contract of sale the goods may be in the possession of the buyer as bailee or agent of the vendor, or of a third person, or of the vendor himself, which is generally the case. If the

Edwards v. Brown, 98 Maine 165; 56 Atl. 654.

10 Sales Act, § 48.

11 Standard Wall Paper Company v. Towns, 72 N. É. 324, 56 Atl. 744.

goods are at the time of the contract in the possession of the purchaser, actual receipt can hardly be shown. Suppose A, having goods of B in his possession, purchases them. If, now, to bring the case within the Statute of Frauds, receipt must be shown, obviously here there could be no actual receipt, but if the buyer so deals with the goods as showing his control over them, that may be taken as an acknowledgment on his part of a receipt of the goods. If the goods are in the possession of a third person, and the purchaser and vendor⚫agree that the third person shall thereafter hold for the benefit of the vendee, that will amount to a receipt and acceptance by the purchaser. Where the goods remain in the possession of the vendor there may, also, be receipt and acceptance by the vendee, if the vendor assumes a changed relation in regard to the goods. In Elmore v. Stone,12 the purchaser of horses from a dealer left them with the dealer to be kept in his livery stable; and it was held that by consenting to keep the horses in his livery, the vendor or the dealer had become the bailee merely of the horses, and that his possession was changed from that of owner to that of bailee.

A mere delivery by the vendor, while it may compel receipt on the part of the vendee, can not compel his acceptance. Acceptance and receipt are the acts of the buyer, but a delivery of goods fully complying with the terms of the contract of sale will pass title to a vendee without acceptance or receipt on his part. This was so held in Caulkins v. Hellman:13

"Where a valid contract of sale is made in writing (which would be a sufficient compliance with the statute), a delivery pursuant to such contract at the place agreed upon for delivery, or a shipment of the goods in conformity with the terms of the contract, will pass the title to the vendee without any receipt or acceptance of the goods by him. But if the contract is oral, and no part of the price is paid by the vendee, there must be not only a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee to pass the title or make the vendee liable 18 47 N. Y. 449, 7 Am. Rep. 461.

121 Taunt. 458.

for the price; and this acceptance must be voluntary and unconditional. Even the receipt of the goods, without an acceptance, is not sufficient. Some act or conduct on the part of the vendee, or his authorized agent, manifesting an intention to accept the goods as a performance of the contract, and to appropriate them, is required to supply the place of a written contract.'

Acceptance before Receipt. Acceptance may precede receipt of goods, and when thereafter delivery is made by the vendor to a common carrier consigned to the vendee, title at once passes, and there is a receipt of the goods by the vendee. In the case of Cross v. O'Donnell,14 the defendant bought a number of hoops of the plaintiff. After the purchaser had inspected and accepted the hoops, he named the steamer upon which they should be shipped to him. The hoops were delivered to the steamer, but the steamer was sunk on her voyage. The defendants refused to pay for the hoops, and pleaded the Statute of Frauds. In this case the court said:

"There is no note or memorandum of the contract and no part of the purchase money was paid by the buyers; and hence unless the buyers accepted and received the hoops, within the meaning of the statute, the contract was void. A purchaser may accept without receiving and he may receive without accepting; but in order to comply with the Statute of Frauds, he must both accept and receive. Here the defendants accepted the hoops. One of them saw them in plaintiff's yard; and the contract had reference to this particular lot of hoops which the plaintiffs finally delivered. There is nothing in the statute which requires that the accepting and receiving shall be at the same time. Either may precede the other; and after both have occurred the statute has been complied with and the contract becomes operative and valid. McKnight v. Dunlop, 5 N. Y. 537. The defendants agreed to take these identical hoops, and after receiving them and thus fully complying with the statute they could not reject them upon any objection to their quality. The only question then is, did they receive them within the meaning of the statute? And this involves the inquiry whether in a case where the purchaser has

14 44 N. Y. 661, 4 Am. Rep. 721.

accepted the goods a delivery to a carrier designated by himself will answer the requirement of the statute as to receiving the goods by the purchaser. I am of opinion that it will.'' 15

Delivery Not Prescribed in Statute. The statute makes no mention of delivery. The term "acceptance and receipt" must be distinguished from the word "delivery". There may be a perfect delivery at common law without acceptance or receipt under the statute. Delivery is the act of the seller; acceptance and receipt the act of the buyer. The common law regulates delivery in all sales; the statute governs the matter of acceptance and receipt. Delivery at common law will be considered later more fully.

Mere manual reception of goods does not constitute legal acceptance under the statute. Where a buyer re-sells goods purchased, that fact will be regarded as proof of his acceptance, though not conclusive, as the buyer may have sold merely to obviate a loss.

§ 39. Earnest Money and Part Payment. The two expressions in the statute, "giving something in earnest," and "giving something in part payment," do not mean one and the same thing. Earnest money is not part of the price. It is given to bind the bargain, and until the bargain is completed there can be no part payment. A deposit of money as a forfeiture in case a buyer should refuse to receive the goods was held, in Howe v. Hayward,16 not to be giving something in earnest, and did not bind the bargain.

It is not usual today to pay earnest money. Whatever is paid in connection with the contract is regarded as part payment. The statute did not provide what sum must be given; any amount evidently would suffice.

It has been held that part payment may be in some other thing than money. The consideration may be other property, or services.17 But a mere promise to pay is not suffi

15 Rodgers v. Phillips, 40 N. Y. 519. 16 108 Mass. 54.

17 Wallace v. Long, 105 Ind. 522, 5 N. E. 666.

cient. Tender of part payment by the buyer without acceptance by the seller is not a compliance with the statute.

Time of Payment. The statute does not designate the time in which payment must be made. It has been held sufficient to make part payment any time before the bringing of an action. In New York and some other States, where the statute is more definite, it has been held necessary, in order to make a subsequent payment a compliance with the statute, that the essential terms of the contract should be re-stated or acknowledged when the payment is made.18

§ 40. Memorandum or Note in Writing. At common law writing was not required to make a contract valid. If, however, a contract is reduced to writing, the writing becomes evidence of the agreement, and no evidence can be admitted to vary the terms of the contract. The Statute of Frauds did not change the common-law rule in regard to writing. If the contract is in writing, it must be proved from the writing. The requirement of the statute governs merely the form in which the contract must be expressed. Although parol evidence is not admissible to supply omissions, or to introduce terms, or to contradict or alter written instruments, it is admissible for the purpose of identifying the subject-matter to which the writing refers. In other words, the terms may be explained, if not sufficiently clear from the context.

Nature Of. The memorandum or note may be made at or after the making of the contract. It need not consist of a single sheet of paper or a single writing. It may be made up of a series of writings, such as an exchange of letters. Therefore, it is not essential that the whole of the terms of the contract should be expressed at the same time or on a single written instrument. In such case it is essential that the paper signed by the parties, if not containing the whole contract, shall refer to the other papers containing the different terms; and parol evidence is admissible to connect up one writing with another for this 18 Raymond v. Colton, 104 Fed. Rep. 219.