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ordinarily be an actual transfer of the possession at common law,
which there was not in Bushel v. Wheeler or in Norman v. Phillips,

The distinction here between the delivery to a carrier, where
the actual possession (or receipt) is not in the vendee so long as
the ri^-ht of stoppage in transitu remains, and the delivery to a
servant, which, in effect, is the actual receipt of the vendee, is
marked. In the latter case there must be a prompt rejection,
virtually the same as where the actual delivery has been made to
the vendee ; or an acceptance, after an undue lapse of time, may
fairly be presumed. But, in the case of the carrier, where there
has been no actual receipt by the vendee, a fortiori where there
has been an express refusal to receive from the carrier,^ there being
neither acceptance nor receipt, there is nothing whatever in the
absence of receipt from which an acceptance ci^n be presumed or
implied. And hence, in the absence of an actual receipt, there is
no necessity of notice ; for nothing has taken place from which
an acceptance can be presumed. And even if there had been, in
the absence of the actual receipt, the requirements of the statute
would still be unmet.

The court, unanimously, made the rule absolute, Alderson, B.,
in delivering his judgment, saying : " The true rule appears to me
to be that acceptance and delivery under the Statute of Frauds
means \_sic, showing the confounding of accepting with receipt]
such an acceptance as precludes the purchaser from objecting
to the quality of the goods ; as, for instance, if instead of sending
the goods back, he keeps or uses them. Here the goods were
not in the possession of the party himself, though the same rule
would hold if they were delivered to a general agent, or to a party
who is authorized by him to examine the quality of the goods.
But the carrier is only an agent for the purpose of carrying
[This is thoroughly accurate. He is, qud carrier, not the agent
of the vendee either for accepting or actually receiving the goods
under the statute. Of course this has no application where, under
the statute, there have been acceptance of the goods, and an actual
delivery and actual receipt by the vendee by a delivery to him, or

1 In Norman v. Phillips, 14 M. & W. to receive the goods from the carrier was

at p. 282, a doubt is expressed by Alder- both admissible and material. So long as

son, B., as to the materiality of the evi- the possession of the goods was in the

dence that the defendant refused to receive carrier he was the agent of the shipper to

the goods from the carrier. This doubt deliver them ; and, "therefore, evidence of

evidently arises from the failure to notice the refusal to receive the goods from the

the distinction between refusing to receive carrier was evidence of refusing to receive

the goods and a refusal to accept them, them from the shipper, — the vendor ;

within the meaning of the statute. We and, therefore, that there was no actual

think the evidence of the vendee's refusal receipt of them under the statute.



PART VI.] THE ACCEPTANCE. 363

to his agent or servant, or to his own ship. Or there may be in
the latter case an actual receipt and no acceptance.] ; and here
the purchaser himself immediately refused to take the goods. If
a carrier is not originally an agent to accept [? receive. He is,
in fact, as carrier, neither an agent to receive or accept.] the
goods, he cannot be made so by mere lapse of time." The other
judges concm-red in the decision. Alderson, B., said further:
" If it had not been for the case of Bushel v. Wheeler I should
have said there was no evidence whatever for the jury of accept-
ance." The rest of the court were evidently of the same opinion
of the unsoundness of the decision of that case, and so far as the
Court of Exchequer could reverse a decision of the Court of
Queen's Bench, Bushel v. Wheeler ^ is, in effect, declared not law
by Norman v. Phillips ; ^ which latter case, though there is not in
it, even, an exact appreciation of the difference between the ac-
cepting and the actual receipt of the statute, is much more
intelligently decided than is the former utterly untenable case.

Benjamin incorrectly says,^ and with him, with similar incor-
rectness, concur many of the law writers, both English and Amer-
ican * (even that usually extremely accurate writer, Blackburn,
sharing in the mistake), — " It is settled that the receipt of goods
by a carrier or wharfinger appointed by the purchaser does not
constitute an acceptance, these agents having authority onli/ to
receive, not to accept the goods for their employers. ... It is well
settled that the delivery of goods to a common carrier, a fortiori
to one specially designated by the purchaser for conveyance to him
or to a place designated by him, constitutes an actual receipt by
the purchaser. In such cases, the carrier is, in contemplation of
law, the bailee of the person to whom, not by whom, the goods are
sent, the latter in employing the carrier being considered as an
agent of the former for that purpose. It must not be forgotten
that the carrier only represents the purchaser for the purpose of
receiving, not accepting the goods. The law in the United States
is the same : Cross v. O'Donnell,^ Caulkins v. Hellman." ^

This, we think, will be evident, from what we have written, to
be palpably unsound. The mistake arises, clearly, from the fail-
ure in so many of the English cases relied on by the text-writers,

1 8 Jur. 532. * 919 ; and Campb. on Sales, 184-186.

2 14 M. & W. 277. The authority of a carrier qua carrier is to

3 Benj. on Sales, §§ 160, 181. cany and deliver, not to "accept" and
* For some of them, see Blackb. on " actually receive " for the vendee. Other

Sales, 2d ed. 17, 22; Br. on St. of Fr. questions arise out of bills of lading, which

§§ 327 b, 328 ; Wood on St. of Fr. 558 ; we consider in a later volume of this work,

3 Pars, on Con. 7th ed. 53, 54 ; * 47, in discussing the subject of sloj}page in

* 48 ; Ch. on Con. 9th ed. 374 ; New- transitu.

mark on Sales, § 285. But see, contra, ^ 44 N. Y. 661,

2 Add. on Con. 8th ed. 433-435 ; * 918, « 47 N. Y. 449.



364 COMMENTARIES ON SALES. [bOOK IV.

to give due effect to the terms in the statute, accept and actually
receive; the statute implying that some part of the goods pur-
chased shall not only be accepted by the buyer as the very subject
of the contract, but that there shall be an actual transfer of the
possession ; which change of possession must be an actual change,
though to effect such transmission the delivery may, as usually at
common law, be manual, constructive, or symbolical. The carrier,
then, quel carrier, is neither the agent of the vendee to accept, or
actually receive the goods under the statute ; but is simply, as
was held by the Court of Exchequer, in Norman v. Phillips,^ as
expressed by Alderson, B., " only an agent for the purpose of car-
rying." And, therefore, as long as the carrier holds the goods
as carrier, and the goods have not come into the actual possession
of the vendee (such possession being either manual, constructive,
or symbolical), and the right of stoi^page in transitu still continues
to exist with reference to them, so long, we think, it is clear there
has been no such actual receipt of them, — much less from that
fact, any implication arising of that entirely different thing, the
acceptance of the statute, — which furnishes, with the acceptance,
the evidence to make the contract be deemed " good," under the
requirements of the seventeenth section of the Statute of Frauds.
The carrier, as such, is in no sense the agent of the vendee,
either to accept or actually receive under the statute. The fact
that the vendee instructs the vendor to ship the goods by a par-
ticular route or by a named carrier, does not make the carrier his
agent, either to accept them or to take the actual receipt or posses-
sion of them for him, under the statute. The carrier becomes the
shipper's agent to receive, carry and deliver the goods. After the
goods are received by the carrjer to be carried, they still remain
at the disposition and under the control of the shipper, who can
direct them, then, at his will ; clearly showing that the receipt is
for him. Again, he may consign them to a particular person ;
but that person, therefore, is not bound to accept the consignment.
The consignee may refuse to accept the goods or pay the freight ;
in which case, clearly, the property remains in the shipper, and his
goods are liable for the freight ; the consignee, except by his own
will, having no such liability imposed upon him by the act of the
consignor. But when, at the place of shipment, the goods are de-
livered, by the authority of the vendee, to his agent, or to his ship,
so that there is an actual transmutation of the property and pos-
session in and to him, so that the vendor's possession, control,
lien, and right of stoppage in transitu are gone ; then, and not till
then, we think, — outside of the question of acceptance and actual

1 14 M. & W. 277.



PART VI.] THE ACCEPTANCE. 365

receipt of a " part of the goods," — are the requirements of the
statute met as to the actual receipt required under the statute ;
the acceptance, even then, where the facts do not show an accept-
ance as well as an actual receipt, being still open until exercised
by the vendee, expressly or impliedly.

In Chapman v. Morton,^ which was a case of sale by sample, the
defendant, after the receipt of the goods, on examination of them,
claimed that they were not according to sample, and notified
the vendors that he repudiated the sale ; but, subsequently adver-
tised the goods for sale in his own name, and sold them in his own
name. In an action for the price of the goods, as goods sold and
delivered, the court held that, notwithstanding the vendee's notice
of rescission, he, in thereafter treating them as his own, had ac-
cepted them. This case, though not under the Statute of Frauds,
is applicable ; the acceptance here being exactly the acceptance
of the statute.^

Where an order for goods made, and for others to be made,
forms one entire contract, acceptance of the former goods will take
the case out of the statute as regards the latter also.^

In Lilly white v. Devereux,* the court held, that if the conduct
of a defendant in dealing with goods already in his possession, is
wholly inconsistent with the supposition that he has not the pos-
session as owner, — as if he sells or attempts to sell the goods, or
if he disposes absolutely of the whole or any part of them, or at-
tempts to do so, or alters the nature of the property, or the like,
— he may be properly said to have accepted and actually received
such goods, so as to take the case out of the Statute of Frauds,
where there has been a contract under which he has held the goods
in possession. But, in this case, where A., being himself yearly
tenant of a house to B., under-let the house and furniture at a
weekly rent to C, A., being desirous of getting rid of his tenancy
at the end of the current year, offered to sell the furniture to C.
for £50 ; which C. thought too much, but verbally agreed to have
it valued, and to pay so much as it should be found worth, on B.'s
agreeing to accept him as his tenant instead of A. The furniture

1 11 M. & W. 534. ou account of the vendee, on the wrongful

* See farther, as to dealing with goods repudiation of the goods by the latter,

being an acceptance of them, by the ven- Sands v. Taylor, 5 Johns. 395 ; Girard v.

dee, after his actual receipt, Street v. Taggart, 5 S. & R. 19.

Blay, 2 B. & Ad. 456 ; Horncastle v. Far- ^ g^ott v. The Eastern Counties Ry.

ren, 3 B. & Aid. 497 ; Parker v. Palmer, Co., 12 M. & W. 33 ; iMills v. Hunt, 17

4 B. & Aid. 387 ; Campbell v. Fleming, Wend. 333 ; 20 Wend. 431 ; Baldey v.

1 A. & E. 40 ; Hunt i;. Silk, 5 East, 449 ; Parker, 2 B. & C. 37 ; Sliirley v. Hey-

Coleman v. Gibson, 1 M. & Rob. 168; ward, 2 H. Bl. 509; Elliott v. Thomas, 3

Healey v. Utly, 1 Cow. 345 ; Lawrence M. & W. 170.

V. Dale, 3 Johns. Ch. 23, 42. And as to « 15 M. & W. 285, 291.

the right of the vendor to resell the goods



366 COMMENTARIES ON SALES. [BOOK IV.

was valued at X80, which C. refused to give, but then offered the
^£50. Before the expiration of the year, an agent of A. took the
key out of the door and gave it to C, telling him that he must
settle with A. himself about the furniture. B. refused to accept
C. as his tenant, and he continued to occupy the house and use
the furniture as before, but continually giving notice to A. to take
away the furniture, which he refused to do ; and after a lapse of
three months, C. sent it to a place of deposit, and notified A. It
was held, on these facts, that there was no evidence of an accept-
ance by C. of the furniture, under a contract of sale, to satisfy
the statute.

Farina v. Home^ is another case where Bushel v. Wheeler ^
was relied on, and where again the Court of Exchequer refused
to follow the principle of that case, and where the clear distinc-
tion which we have taken as between the acceptance and the
actual receipt of the statute (and which in so many cases in
the English Court of Queen's Bench has been singularly ignored)
is sustained. The case, too, in effect, like Norman v. Phillips,^
is opposed in principle to the doctrine laid down by Benjamin
and other writers,* as to the carrier, qud carrier (and if carrier,
then warehouseman), being the agent of the vendee to actually
receive the goods to satisfy the statute.

Tiie case of Farina v. Home was an action for goods sold and
delivered. The defendant, residing in London, verbally ordered
from the plaintiff at Cologne, in July, 1845, goods for the price
of X15, to be shipped to the defendant. The goods were ac-
cordingly sent by the plaintiff to his shipping-agent in London,
named Brenchley, who received them, and warehoused them with
one Barber (a wharfinger), at the same time informing the de-
fendant of their arrival. On receipt of the goods, Barber handed
to Brenchley a delivery warrant, dated 21st July, whereby they
were made deliverable to Brenchley or his assignee by indorse-
ment, on payment of rent and charges from the 25tli of July.
Brenchley forthwith indorsed and sent it to the defendant, who
kept the warrant for about ten months, and, although repeatedly
applied to to pay the price of and charges on the goods, he did
not do so ; and he refused also to give back the warrant, saying
that he had sent it to his solicitor, and that he intended to defend
the action, for he had never ordered the goods, adding that they
would remain for the present in bond. The statute being relied
on, the question was left to the jury whether the defendant had
accepted and actually received the goods ; the court directing the

1 16 M. & W. 119. 8 14 M. & W. 277.

2 9 Jur. 532. 4 gee ante, p. 363.



PART VI.] THE ACCEPTANCE. 367

jury that, to amount to this, the acts of the vendee must show
his intention of taking possession of the goods as owner. The
jury found for the plaintiff for <£16 lis. The Court of Ex-
chequer set aside the verdict, and ordered a new trial. Parke,
B., in delivering the unanimous judgment of the court, said,
" On a motion for a new trial we intimated our opinion that there
was evidence to go to the jury of the defendant's acceptance of
the goods by retaining the delivery warrant ; but defendant's
counsel insisted that there was no sufficient evidence of the actual
receipt of the goods, that is, the deliver^/ of the possession of
the goods on behalf of the vendor to the vendee, and the receipt
of the possession by the vendee ; and that the delivery and re-
ceipt of the warrant was not in effect the same thing as the
delivery and receipt of the goods ; and we are all of that opinion.
That warrant is no more than an engagement by the wharfinger
to deliver to the consignee or any one he may appoint ; and the
wharfinger holds the goods as the agent of the consignee ^ (who is
the vendor's agent), and his possession is that of the consignee
until an assignment has taken place and the wharfinger has
attorned, so to speak, to the assignee, and agreed with him to
hold for him. Then, and not till then, the wharfinger is the
agent or bailee of the assignee, and his possession that of the as-
signee, and then only is there a constructive delivery to him. In
the mean time the warrant, and the indorsement of the warrant,
is nothing more than an offer to hold the goods as the warehouse-
man of the assignee.^ We all, therefore, think that though
there was sufficient evidence of the acceptance, if the goods had
been delivered to the defendant, there is none of the receipt ; and
therefore there must be a new trial." ^ The distinction, even

^ " Consignor " is the word used here ; are in the possession of the carrier, — • qua

but the context shows this is a mistake, carrier, — his possession being a continu-

The very next words show this : " Who is ance of that of the vendor until the goods

the vendor's agent," the vendor being the have come into the actual or constructive

consignor, and his agent the consignee, possession of the vendee, so as to extin-

The correction is a material one to the guish the right of stoppage in transitu.

argument and sense. The next use of the But in Bushel v. Wheeler, 8 Jur. 532, and

word " consignee " we have quoted is cor- Norman v. Phillips, 14 M. & W. 277, there

rect in the text of the report. seems not to have been any bill of lading

2 Precisely as is the bill of lading " an or warehouse warrant transferred ; and,

offer to hold the goods" for the consignee therefore, there was not, as in Farina v.

where there is a bill of lading. And as, Home, 16 M. & W. 119, even a transfer

in the case of the warehouseman, until of the indicia of possession, much less of

there has been an actual delivery of the the possession itself, which, as a continu-

goods by their manual transfer, or a con- ance of the vendor's j)ossession, really re-

structive delivery by such "attornment," maincd in the vendor. Farina v. Home,

the lien of the vendor continues in the therefore, in this respect, goes even farther

right of stoppage in transitu, and the ac- than Bushel v. Wheeler, or Norman v.

tual receipt of the goods and their actual Phillips, though in principle in entire ac-

or constructive possession are not in the cord with the holding in the latter case,
vendee ; so equally is it where the goods ^ And see I>ill v. Bami'ut, 9 M. & W.



368 COMMENTARIES ON SALES. [BOOK IV.

here, between " acceptance " and " receipt " is not as clear as it
would be if these terms were not so generally confounded as they
are in the cases.

In Walker v. Nussey,^ which was an action for goods sold and
delivered, the goods, having been actually received by the defend-
ant were returned within two days of their receipt as inferior
to sample, and the jury having found that they were returned in
a reasonable time, and that there was therefore no acceptance of
the goods to take the case out of the statute, the verdict was
sustained- The presumption in this case would seem to be that
the goods were not equal to sample, and were therefore properly
rejected, — not being the goods which were purchased, and which
by the purchase by sample were agreed to be taken as the sub-
ject of the purchase if they conformed to the sample. See the
latter portion of this Part, where the effect of a sale by sample,
as in itself an acceptance where the bulk conforms to the sample,
is considered.

There is an intimation by Maule, J. ,2 in Beaumont v, Brengeri,^
during the argument of the case, that there might be an actual
transfer of the possession or an actual receipt of the goods
under the statute, and yet the vendor retain his lien for the price.
But the decision itself is inconsistent with that view. The
case was one where it was held that the dealing with a carriage
was sufficient to show an acceptance and actual receipt of it,
even though it remained in the custody of the vendor. The
ground upon which the decision was based was that the vendor
had ceased to hold the carriage as owner, and merely held it as a
warehouse-keeper for the vendee. Having ceased to be owner,
and retaining " possession merely in the character of agent " (as
it was held in the case that he did), with his possession as owner
his lien as owner was necessarily gone.

Lord Denman, C. J., in Curtis v. Pugh,* again shows the con-
fusion of his mind in reference to the terms " acceptance " and
" actual receipt " of the statute. In the case tried before him,

36; Hanson v. Armitage, 5 B. & Aid. 557; the shipper may direct. As between the

Howe V. Palmer, 3 B. & Aid. 321 ; Ben- vendor and vendee, the carrier's duty, in

tall V. Burn, 3 B. & Cr. 423 ; Zroniger v. their delivery by the ship, is to deliver

Samuda, 7 Taunt. 265. And see the nisi them for the shipper (who can direct them

lirius case of Gorman v. Boddy, 2 C. & K. as he pleases), not to receive them for the

145, which was a case of the shipment of consignee, who, at the time of the receipt,

goods by a carrier named by the vendee ; is usually unknown to the carrier. After

and although Cresswell, J., intimates that the shipment of the goods the shipper, by

there might be a delivery to the carrier as the bill of ladmg, can control them at

the defendant's agent, he refers to the pos- will,

session of the goods as being in the carrier. i 16 M. & W. 302.

As a general rule, the carrier in receiving 2 ^^ p_ 303,

goods receives them for the shipper, his ^ 5 c. B. 301.

duty being to carry and deliver them as * 10 Q. B. 111.



PART VI.] THE ACCEPTANCE. 369

notwithstanding the jury found that the defendant had not dealt
with the goods so as to make them his own, and had done no
more than was necessary for an examination of their quality, a
verdict was entered for the plaintiff ; leave being reserved to
enter a nonsuit. The court above, including Lord Denman him-
self, were unanimous for a nonsuit. In this case there was an
actual receipt ; but the evidence showed a rejection of the goods
after their actual receipt. Lord Denman said, " There must be
both a delivery and an acceptance. Here the evidence showed
a rejection." That is, in this case, there was an actual receipt of
the whole of the goods, but, in addition to that, there must be an
acceptance of them ; namely, an approval, — a taking to them as
the subject of the contract. Patteson, J., says, " If he had looked
them over and selected them long before, and, when they came to
his warehouse, had refused to have them, that would not be a
case of goods sold and delivered." No ! nor would it answer
the requirements of the statute. It would be an acceptance of
the goods under the statute, but a refusal to receive them,
— the exact converse of the actual receipt required. And,
again, Patteson, J. : "A confusion sometimes arises in applying
the Statute of Frauds to the case of goods sold and delivered.
If the purchaser actually takes the goods into his possession,
that is an acceptance [the meaning of this is a little indefinite]
independent of the statute ; but there may be an acceptance
sufficient to satisfy the statute, which may yet not support an
action for goods sold and delivered."

If by this is meant, which we scarcely think it is, that as the
acceptance is an independent entity from the actual receipt of the
statute, there may be an acceptance without an actual receipt; and,
therefore, that there may be an acceptance unaccompanied by a
delivery, without which latter the action for goods sold and deliv-
ered will not lie, then this exactly accords with our whole conten-
tion in this Part. But this distinction is, as we have shown, one
that has been entirely lost sight of in the Court of Queen's Bench
in an immense number of cases ; and we doubt if this was the mean-
ing of Patteson, J., in this instance. If the language is used in the
sense that there may be an acceptance and actual receipt to satisfy
the statute, and yet not be sufficient to sustain a count for goods
sold and delivered, then we answer : Yes, an acceptance and
actual receipt of some " part of the goods so sold " is sufficient to
satisfy the very language of the statute ; and even a sample, if
taken out of the very bulk of the goods sold, is, as we have seen
supra, a sufficient part. But, of course, this will not sustain a



Online LibraryJeremiah TravisCommentaries on the law of sales and collateral subjects (Volume 2) → online text (page 52 of 116)