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A selection of cases on the law of sales of personal property .. online

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this case that the seller should set apart and measure the thing sold,
that would not make the act of measuring amount to a virtual accept-
ance or receipt of the goods by the buyer." The next case relied upon
is Tempest v. Fitzgerald, 3 B. & Aid. G80, where in an action for the
price of a horse that had died after the time when he was sold by parol
and before he was delivered or paid for, the question arose upon whom
the loss should fall. The only evidence of acceptance and receipt was
that while the horse remained in the possession of the vendor, the pur-
chaser made his servant gallop the horse and gave some directions
about his treatment, requesting that he might be kept by the vendor a
week longer. The court held that there had been no acceptance and
receipt of the horse by the purchaser. But the case has little con-
nection with the doctrine contended for, that there must be an oppor-
tunity for the vendor to inspect the quality of the thing sold: and
Abbott, C. J., founds his judgment upon this consideration, that the
defendant had no right of property in the horse till the price was paid,
and could not till then exercise any act of ownership over him.
Holroyd, J., says: "There is no evidence to show that" the vendor
"had ever parted with the possession " of the horse. Next conies
Hanson r. Annitage, 5 B. & Aid. 557. There the vendor, who resided



796 MORTON V. TIBBETT. [CHAP. VI.

in London, having been in the habit of selling goods to a customer in
the country and of delivering them to a wharfinger to be forwarded by
the first ship, in pursuance of a verbal order from the customer de-
livered a parcel of goods to the wharfinger to be forwarded in the usual
manner. The customer had done nothing beyond giving the verbal
order for the goods. Abbott, C. J., in a very few words delivered the
judgment of the court that an action could not be maintained for the
price of the goods, on the ground that the acceptance in this case not
being by the party himself was not sufficient, referring to Howe v. Pal-
mer, 3 B. & Aid. 321, where he says : " It was held that there could be
no actual acceptance so long as the buyer continued to have a right to
object either to the quantum or quality of the goods." But the decision
may well stand on other grounds; and we may observe that it is an
actual receipt of the goods which the statute requires, and not an actual
acceptance. Carter v. Toussaint, 5 B. & Aid. 855, was likewise relied
upon, but it was merely (like Tempest v. Fitzgerald, 3 B. & Aid. G80),
a case of a sale by parol of a horse that remained always in the posses-
sion and under the control of the vendor, so that he could not have
been accepted and received by the purchaser. Abbott, C. J., says :
"The plaintiff's character of owner remained unchanged from first to
last." The next case is Smith v. Surman, 9 B. & C. 561, and there
after a sale of timber by parol the purchaser had offered to sell the
butts, and had given some directions about cross-cutting the timber; but
the evidence clearly proved that the whole continued to remain in the
possession of the vendor. The court, as might have been expected,
held that there could be no receipt by the purchaser while the possession
of the goods remained with the vendor. A very learned judge, my
brother Parke, does unnecessarily add, 9 B. & C. 577 : 4i That the later
cases have established that, unless there has been such a dealing on the
part of the purchaser as to deprive him of any right to object to the
quantity or quality of the goods, or to deprive the seller of his right of
lien, there cannot be any part acceptance." That there can be no
acceptance and receipt by the purchaser while the lien of the vendor
remains is clear enough, for the vendor's lien necessarily supposes that
he retains the possession of the goods ; but I must be permitted to
doubt whether the cases referred to have; established the residue of the
rule. The last case cited on behalf of the defendant was Norman v.
Phillips, 14 M. & W. 277. This case very much resembled Hanson v.
Armitage, 5 B. & Aid. 557, and presented no stronger evidence of
acceptance and receipt. The defendant living at Wallingford gave the
plaintiff, a timber merchant in London, a verbal order for timber, direct-
ing it to be sent to the Paddington station of the Great Western Kail-
way so that it might be forwarded to him at Wallingford. The timber
was accordingly forwarded to the Wallingford station ; but the defend-
ant being informed of its arrival refused to have anything to do with
it. The court held that although there might be a scintilla of evidence
for the jury of an acceptance of the timber within the Statute of Frauds,



SECT. V.] MOBTON V. TIBBETT. 797

yet there was not sufficient to warrant them in finding that there was
such an acceptance; and the court set aside a verdict for the plaintiff
as not warranted by the evidence. Alderson, B., says: "The true
rule appears to ine to be that acceptance and delivery under the Statute
of Frauds means such an acceptance as precludes the purchaser from
objecting to the quality of the goods." He adds what, with great
deference, is a better reason: "The carrier is only an agent for the
purpose of carrying, and here the purchaser himself immediately re-
fused to take the goods." It was upon this reason that the rest of
the court appears to have proceeded.

If there were such a rule as is contended for it would Vie decisive
against the plaintiff in this case, for the defendant never had an oppor-
tunity of examining the goods sold ; there is no evidence that Edgley
was his agent for that purpose ; and he had done nothing to preclude
him from objecting to the quality of the wheat, lint if there be no
such rule, then surely there was evidence to submit to the jury and to
justify them in finding an acceptance and receipt. He specially sent
Edgley to receive the wheat: after the delivery of the wheat to his
agent and when it was no longer in the possession of the vendor,
instead of rejecting it as in other eases, he exercised an act of owner-
ship over it by re-selling it at a profit, and altering its destination by
sending it to another wharf, there to be delivered to his vendee. The
wheat was then constructively in his own possession ; and could such
a re-sale and order take place without his having accepted and received
the commodity? Does it lie in his mouth to say that he has not
accepted that which he has re-sold and sent on to be delivered to
another? At any rate is not this evidence from which such an
acceptance and receipt may be inferred by the jury? Upon similar
evidence the finding of an acceptance and receipt has been sanctioned
by very eminent judges. In Hart v. Sattley. 3 Campb. 528, where
goods had been verbally ordered to be sent fron London to Dartmouth,
and were sent by a carrier empWed by the defendant, and were not
proved to have been rejected bj* him, although there was no proof that
they had come to his hands, Chambre, J., is reported to have said : " I
think under the circumstances of this case the defendant must be con-
sidered as having constituted the master of the ship his agent to accept
and receive the goods." The plaintiff recovered a verdict which was
not disturbed. In Chaplin v. Rogers. 1 East, 192, where a stack of hav
being sold by parol to the defendant he, without paying for it or re-
moving it. re-sold a part of it to another person who took it away, and
the jury found that the defendant had accepted and received the stack
of hay, Lord Kenyon said: "The question was specifically left to the
jury whether or not there were an acceptance of the hay by the defend-
ant, and they have found that there was, which puts an end to any
question of law." " Here the defendant dealt with this commodity
afterwards as if it were in his actual possession ; for he sold part of it
to another person." " The other judges agreed that there was sufficient



798 HUNT V. HECHT. [CHAP. VI.

evidence of a delivery to and acceptance by the defendant to leave to
the jury." And the verdict for the plaintiff was confirmed. So in
IMenkinsop v. Clayton, 7 Taunt. 597, Gibbs, C. J., and the whole
Court of Common Pleas, agreed that if a person who has contracted
lor the purchase of goods offers to re-sell them as his own, whether
this be proof of an acceptance and receipt of the goods by himself is
a question for the jury. 1 will onhy further mention the well-considered
case of Bushel v. Wheeler, 8 Jurist, 532, 15 Q. B. 442, note, decided
in this court. The defendant residing in Herefordshire had verbally
ordered goods from a manufacturer at Bristol ; according to his orders
they were sent to Hereford and deposited in a warehouse there. After
they had been a considerable time there the defendant repudiated them.
In an action for the price before a most learned and cautious judge, Mr.
Justice Erskine, it was left to the jury whether upon the evidence the
buyer had accepted and received the goods ; and the verdict was for
the defendant, with liberty to enter a verdict for the plaintiff if the
court should be of opinion that there was an acceptance. A rule to
show cause was granted ; and cause being shown the court unanimously
approved of the direction, but declined to take upon themselves to enter
a verdict for the plaintiff, and made a rule absolute for a new trial. I
particularly rely upon the pointed language in that case of my brother
Coleridge, who, after observing that the acceptance required b}' the
statute must be very clear and unequivocal, says that it may be con-
structive ; and adds that " it is a question for the jury, whether under
all the circumstances" "the acts which the buyer does or forbears to
do are an acceptance or otherwise."

These are express decisions through a long course of years that
there may be an acceptance and receipt of goods by a purchaser
within the Statute of Frauds, although he has had no opportunity of
examining them, and although he has done nothing to preclude himself
from objecting that the}' do not correspond with the contract. We
approve of these decisions, thinking that they do not infringe upon
the Statute of Frauds, and that they conduce to fair dealing in
trade.

We are therefore of opinion that in this case the rule for entering a
nonsuit should be discharged. Rule discharged.



HUNT y. HECHT.
In the Exchequer, June 6, 1853.

[Reported in 8 Exchequer Reports, 814.]

Declaration for goods sold and delivered. Plea, never indebted.
At the trial before Martin, B., at the London sittings after Easter
term, it appeared that in February last the defendant went to the ware-



SECT. V.] HUNT V. IIECHT. 799

house of the plaintiff, who was a bone merchant, for the purpose of pur-
chasing some bones. The defendant there inspected a heap consisting
of ox bones mixed with cow bones and other bones of an inferior de-
scription. The defendant objected to the latter, but verbally agreed to
purchase a quantity of the other bones, to be separated from the rest
and to contain not more than 15 per cent of cow bones ; and be directed
them to be sent in sacks bearing particular marks to the wharf of one
Barber in Lower Thames Street. Shortly afterwards the defendant sent
to the plaintiff the following shipping note : —

Brewer's, Chester's, and Galley Quays, Lower Thames Street.
J. Barber, Wharfinger and Warehouse-keeper.

Receive and ship per James Stuckbury & Sons, lighters, the under-
mentioned goods : —

| Mark | No. |

Wharf charges to be paid by Hecht Brothers, London.

The above shipping note was enclosed in the following letter: —

35 Seething Lank, Feb. 7, 1853.
Dear Sir, — We beg to enclose you shipping note for the bones, the
leg bones to be marked -, and the bullocks °-\ Please fill up the num-

O A B I

ber of bags in the shipping note and send the goods to the wharf, latest
by Wednesday morning next. Waiting your invoice stating how many
bags of each sort, we are, sir,

Yours sincerely, Hecht Brothers.

Mr A. Jarred Hunt, Lambeth.

The plaintiff accordingly sent fifty bags marked as requested, and
filled up the shipping note. The bags were delivered at the wharf and
received by the wharfinger on Wednesday the 9th of February, but the
defendant was not aware of their having been sent until the following
day when the invoice was received. The defendant then examined the
bones, and refused to accept them, on the ground that they were not
what he had bargained for. It was objected on behalf of the defendant
that there was no evidence of acceptance and receipt to satisfy the re-
quirements of the 17th section of the Statute of Frauds, 29 Car. 2. c. 3 ;
and the learned judge being of that opinion nonsuited the plaintiff, re-
serving leave for him to move to enter a verdict for the amount claimed.

Bramwell showed cause.

J/nule to support the rule.

Martin, B. The question is, Whether the defendant has accepb d
and actually received the goods bargained for? The contract was to
buy such bones as were ordinary merchantable bones. It appears that
there were various sorts of bones intermixed in a heap, and that there
was no purchase of the bulk, but of a certain article to be selected from
it. The defendant was only bound to accept merchantable bones : and
an order is given to a wharfinger to receive those bones. No doubt in
one sense the goods were received by the defendant, because they were



800 PARKER V. WALLIS. [CHAP. Vi.

received by a wharfinger directed by bim to receive them. But tbe
question is, whether there has been an acceptance to satisfy the statute.
There are various authorities to show that, for the purpose of an accept-
ance within the statute, the vendee must have had the opportunity of
exercising his judgment with respect to the article sent. Morton v.
Tibbett, 15 Q. B. 428, has been cited as an authority to the contrary ;
but in reality that case decides no more than this, that where the pur-
chaser of goods takes upon himself to exercise a dominion over them,
and deals with them in a manner inconsistent with the right of property
being in the vendor, that is evidence to justify the jury in finding that
the vendee has accepted the goods and actually received the same. The
court indeed there say that there may be an acceptance and receipt
within the statute, although the vendee has had no opportunity of exam-
ining the goods, and although he has done nothing to preclude himself
from objecting that they do not correspond with the contract. But in
my opinion an acceptance to satisfy the statute must be something more
than a mere receipt ; it means some act done after the vendee has exer-
cised or had the means of exercising his right of rejection.

Rule discharged. 1



WILLIAM PARKER v. HENRY WALLIS and ABRAHAM

WALLIS.

In the Queen's Bench, May 5, 1855.

[Reported in 5 Ellis <f- Blackburn, 21.]

Count alleging that plaintiff sold to defendants turnip-seed then
growing, to be harvested and thrashed by plaintiff and then delivered
to defendants as they should direct ; that the seed was harvested and
thrashed, and plaintiff delivered part which was accepted and actually
received by the defendants. General averments of performance.
Breaches ; that defendants would not accept the residue, nor pay for
the part received.

Pleas : amongst others, that plaintiff did not sell to the defendants,
nor did they buy of the plaintiff the seed ; and that the plaintiff did not
deliver, nor did the defendants accept the part. Issues thereon.

On the trial before Wightman, J., at the last spring assizes for Suf-
folk, the plaintiff gave evidence by which it appeared that the plaint ill
was a farmer, and the defendants were in partnership as seed and corn
merchants at Ipswich. On the 21st June, 1854, the plaintiff and the
defendants being at Bury market verbally made a contrnct for the sale
of seed of the value exceeding £10 to the effect set forth in the count;
and the defendants named the railway to Ipswich as one mode by which

i Pollock, Ali>erson, and Platt, BB., delivered brief concurring opinions.



SECT. V.] PARKER V. WALLIS. 801

the seed might, when harvested, be sent to them at Ipswich. Tn July
the seed was harvested and thrashed; and on the 21th July twenty
sacks of the Seed were sent by the plaintiff by railway to the defendants
at Ipswich. On Wednesday, 26th July, the twenty sacks arrived at
Ipswich. On that same day the plaintiff and the defendant Abraham
Wallis were both at Bury market. The defendant Abraham Waliis said
to the plaintiff that a messenger had just come up from Ipswich from
his brother Henry, to say that the seed sent by plaintiff had just arrived
and was out of condition. The plaintiff said that the seed was in good
condition, and so Abraham Wallis would find when he examined it.
Abraham Wallis said he could say no more, as he had not seen it him-
self. The only evidence of this conversation was given by the plaintiff;
and according to his recollection nothing more then passed. The fol-
lowing correspondence was given in evidence : —

Defendants to plaintiff: —

Ipswich, 7 Mo. 28.

Respected Friend, — A personal inspection of the twenty sacks
turnip-seed fully confirmed what we said on Wednesday. It is both
hot and mouldy ; and we must beg to decline it altogether. It now
waits your instructions for removal.

Plaintiff to defendants : —

MlLDENHALL, 31st July, 1854.

The twenty combes of turnip-seed was in good condition this day
week when delivered, as good as any that I have delivered this season,
which I have witness to prove, and I duly advised you of it ; and as to
what may have happened to it since, of course I cannot be accountable
for. I have the remaining forty combes ready for delivery, waiting
your order.

Defendants to plaintiff : —

Ipswich, 8 Mo. 1, 1854.

As you have failed to fulfil your contract, we shall purchase seed else-
where. The twenty sacks which you authorized us to receive for you,
and to lay out thin in consequence of its being hot and mouldy, we have
now directed to be returned to the Eastern Counties Railway Station to
wait your orders, and must request you to return and empty sacks.

Plaintiff's attorney to defendants (extract) : —

Gentlemen, — I am instructed by Mr. William Parker of Mildenhall

to apply to you for payment of the turnip seed you purchased of him,
twenty sacks of which have been delivered, and t lie remainder has been
for some time past waiting your directions and standing at your expense.
The authority you alluded to in your letter of the 1st instant is most
positively denied by my client ; and the date of the delivery to you, and
of the letters passing between you and Mr. Parker, plainly show that
such an authority could never have been given, and certainly never was
contemplated by my client.



802 PARKER V. WALLIS. [CHAP. VI.

Defendants to plaintiff's attorney (extract) : —

Ipswich, 8 Mo. 8, 1854.

In reply to thy letter we beg to say that, as Mr. Parker's memory
seems so very forgetful, we fortunately are able to remember for him ; and
we have full and sufficient witness to the authority upon which we acted,
and to which allusion is made in our letter of the 1st instant, in our
youn« man who stood by and heard the order given to us to receive it
on his account and lay it out thin to cool.

The rest of the evidence of the plaintiff went to show that the seed
in point of fact was good when it went to the railway ; that the condi-
tion of the seed can easily be ascertained without spreading it out thin ;
and that prices had fallen very much between the 21st June and the
26th July.

The defendants claimed a nonsuit on the ground that there was no
evidence to satisfy the Statute of Frauds. The learned judge directed
a nonsuit, with leave to move to enter a verdict for £140 if there was
evidence of an acceptance and actual receipt of any part of the turnip-
seed.

D. Power and H. Mills now showed cause.

O'MaUey and Worlledge, contra.

Lord Campbell, C. J. I do not think we should be justified in mak-
ing the rule absolute to enter a verdict for the plaintiff; for whether the
evidence would have warranted the jury in finding that there was an
acceptance is at least very doubtful ; but at the same time I cannot say
that there is not some evidence to go to the jury.

Of the law there is no doubt. To make an acceptance, it is not neces-
sary that the vendee should have acted so as to preclude himself from
afterwards making objection to the quality of the article delivered ; but
he must have done something indicating that he has accepted part of
the goods and taken to them as owner. This may be indicated by his
conduct, as when he does any act which would be justified if he was the
owner of the goods and not otherwise. In such a case the vendee doing
that act is supposed to have accepted the goods and become owner of
them. Thus detention of the goods for a long and unreasonable time
by the vendee is evidence that he has accepted them ; but in the present
case there was no detention of that kind before the letter of the 28th of
July ; and detention after that letter, stating that the seed was rejected
and waited the plaintiff's order for its removal, amounted to nothing.
But then it appears by the defendants' own letters that they had spread
the seed out thin. That is an act of a doubtful character. If the seed
was, as the defendants assert, hot and mouldy, I should say that spread-
ing it out thin was an act done by the vendee, not as an act of owner-
ship, but for the benefit of the vendor ; but in this case there was
evidence that the seed was good. Whether it was an act of acceptance
depends on whether it was an act done by the defendants as owners of
the goods, or an act done for the benefit of the article by the disappointed



SECT. V.] MARVIN v. WALLIS.

vendee acting for the benefit of the vendor. On the evidence it is left
in doubt which it was; and I think that was a question for the jury. I
think, therefore, that the rule should be moulded, and made absolute for
a new trial.

Ckomfton, J. The question is, whether there is any evidence that
the defendants in spreading out this seed thin acted as owners receiving
it under the parol contract. Of the fact that they did so spread it out
there is no doubt; but it is an act explainable on three suppositions:
First, they may have spread it out by the authority of the vendor, the
plaintiff; second, they may have done it for the benefit of the seed, a
perishable article in such a condition as to render the step proper ; third,
they may have done the act as owners, spreading it out for their own
convenience ; for it is not denied that it was a more extensive act than
was necessary for mere examination to see if it was good. Now there
was contradictory evidence as to whether the plaintiff had authorized
it; so the plaintiff was not bound by that first explanation, unless the
jury found that there was authority. Then there was evidence that the
seed was in such a condition that the defendants could not have done the
act for its benefit; so that the plaintiff was not bound by that explana-
tion. If these two were negatived by the jury, there remained the third
explanation only ; so that I cannot say that there is no evidence of an
acceptance; but I think that the court do right to mould the rule, as
the evidence is not sufficiently satisfactory to justify us in entering a
verdict. Rule absolute for a new trial 1



MARVIN v. WALLIS.

In tiie Queen's Bench, June 5, 1856.

[Reported in 6 Ellis <j- Blackburn, 720]

Action for money payable by defendant to plaintiff for horses,
mares, and geldings, bargained and sold, and sold and delivered by
plaintiff to defendant ; and on accounts stated. Plea, never indebted,
Issue thereon.

On the trial before Lord Campbell, C. J., at the last Warwickshire
assizes, it appeared that the action was brought to recover the price of
a horse. It was agreed that there had been a complete verbal bargain
for the sale of the horse by the plaintiff to the defendant for a price
above £10, and that about a fortnight afterwards the plaintiff sent the
horse to the defendant, who refused to take or pay for him : alleging
that the horse had been ill-used in the interval. The plaintiffs evi-
dence was that the bargain was complete for immediate delivery ; that
after it was complete the plaintiff asked the defendant to lend, him the

1 Wiohtmas and Erle, JJ., delivered concurring opinions.



804 MARVIN V. WALLIS. [cHAP. VI.

horse for a few weeks till he got another, to which the defendant agreed



Online LibrarySamuel WillistonA selection of cases on the law of sales of personal property .. → online text (page 101 of 128)