When insufficient.

them, it is a sufficient acceptance (r). The same learned judge decided similarly, where on a contract for the purchase of several pipes of wine, the plaintiff's initials were at his request marked on the casks by the clerk, and the plaintiff took with him the gauge numbers (s). It is doubtful, however, whether these cases can be supported (t).

But other acts, although apparently furnishing some grounds for presuming ownership, have been held insufficient. Where the plaintiffs, being farriers, sold a horse by verbal contract, but no time was specified for payment, and at defendant's request the horse remained for. a certain period with the vendors, and was afterwards sent to grass, by the direction of defendant, in the name of the vendors, it was held to be no acceptance (u). The Court, however, expressed an opinion that it would have been otherwise, if the horse had been sent in the defendant's name (r). Again, there was held to be no acceptance of a horse, which had remained all the time in the vendor's possession, although defendant had rode it out, and given directions about its treatment (y). In a recent case, where

(r) Hodgson v. Le Bret, 1 Campb. 233.

(s) Anderson v. Scott, 1 Campb. 235, n.

(t) See Baldey v. Parker, 2 B. & C. 37. In Proctor v. Jones, 2 C. & P. 532, Best, C. J., dissents from the doctrine of Lord Ellenborough. See 8 B. & C. 619.

(u) Carter v. Toussaint, 5 B. & A. 855; S. C. 1 D. & R. 515. (x) 5 B. & A. 858, 860.

(y) Tempest v. Fitzgerald, 3 B. & A. 680.

the defendant ordered a waggon to be made, and purchased the iron-work and a tilt from another person, who assisted the plaintiff's servants in fixing them on, it was held to be no acceptance (z).

by agent.

Delivery to an Agent.-Delivery to a carrier, or Acceptance other agent, expressly or impliedly authorized by the vendee, has been held to amount to an actual acceptance by vendee; but there must be sufficient ground for presuming the unequivocal assent of the principal, since, even if the delivery be to the purchaser himself, it has been stated above that an immediate refusal on his part will render the delivery nugatory (a). Perhaps some of the earlier decisions proceeded too far, in presuming the acceptance by a carrier to be the acceptance of the principal.

The delivery of a hogshead of gin to the master of a ship, to be conveyed to the purchaser, was held sufficient, the purchaser having been in the habit of receiving consignments of spirits by such conveyance (b). But it was decided not to be sufficient, merely to send the goods to a quay as ordered by the defendant, where no particular

(z) Maberly v. Sheppard, 10 Bingh. 99; S. C. 3 M. & Scott, 436. (a) Supra, p. 57; see Kent v. Huskisson, 3 B. & P. 233. (b) Hart v. Sattley, 3 Campb. 528, per Chambre, J. And see Dutton v. Solomonson, 3 B. & P. 582; Dawes v. Peck, 8 T. R. 330; Buckman v. Levi, 3 Campb. 414; Vale v. Bayle, Cowp.

carrier had been named (c). Some of the more recent decisions seem to indicate the intention of the Courts, not to push to any greater length the presumption of assent, on the part of the vendee, to a delivery into the possession of a third party. Thus, where the goods had been delivered to a wharfinger to be forwarded to the purchaser in the customary manner, the property was held not to be transferred (d); and the same was decided, where defendant had even appointed a particular boat, and desired a third party to inspect the loading, but did not himself exercise any act of ownership(e). In a very recent case, it was declared to be no sufficient delivery and acceptance of goods contracted for, that they were shipped on board a vessel chartered by the purchaser (f). Where the goods are in the custody of a third party, a written order, directing the bailee to deliver them to the purchaser, is a sufficient delivery (g). But it is absolutely necessary that the bailee should consent to hold them as agent for the purchaser (h).

(c) Anderson v. Hodgson, 5 Price, 630; and see Snee v. Prescott, 1 Atk. 248.

(d) Hanson v. Armitage, 5 B. & A. 557.

(e) Astey v. Emery, 4 M. & S. 262. [This case and the preceding seem scarcely reconcilable with the cases cited above.] (f) Acebal v. Levy, 10 Bingh. 376.

(g) Searle v. Keeves, 2 Esp. 598.

(h) Bentall v. Burn, 3 B. & C. 423; S. C. 5 D. & R. 284.

SECTION III.- What is held to amount to Earnest and part Payment.

The second exception made by the statute is, where the buyer shall "give something in earnest "to bind the bargain, or in part payment."

Very few questions arise on the construction of Earnest. this clause. It was decided that there must be an actual transfer of something valuable, to constitute a "giving something in earnest" within the statute. Thus, a custom which prevails in the north of England, of striking the bargain, by the seller (or his agent) drawing the edge of a shilling over the hand of the purchaser (a), was held not to be sufficient (b).

66

earnest.

The effect of giving earnest seems to be to alter Effect of the property, though it has been said that it merely binds the bargain. Lord Holt thus lays down the law :-" Notwithstanding the earnest, the money must be paid upon fetching away the goods, because no other time for payment is appointed. Earnest only binds the bargain, and gives the party a right to demand; but a demand without payment of the money is void. After earnest given, the vendor cannot sell the goods to another

(a) Or, as it is stated in the marginal abstract, "the purchaser drawing the coin over the hand of the seller,"-which seems to be the correct reading.

(b) Blenkinsop v. Clayton, 7 Taunt. 597.

F

Part pay

ment.

without a default in the vendee; and, therefore, if the vendee does not come and pay and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person (c)." But this doctrine seems to be contradicted by the following decision. The plaintiff agreed to give his horse and the sum of two guineas for a horse of the defendant's, and the latter paid a halfpenny by way of earnest to make the agreement more firm and binding; it was held, that the plaintiff might recover without alleging any performance or offer of performance of his own part of the contract (d). Buller, J., said, "the payment of the halfpenny vested the property of the colt in the defendant, and therefore it was unnecessary for the plaintiff to show that he had tendered the colt to the defendant (e).”

Where a part payment has been made, it must have been given as part of the whole consideration: it seems that, if the contract be severed, the part payment will not have the effect of taking the residue out of the statute (f). The giving a bill of exchange or promissory note, in part payment,

(c) Langfort v. Administratrix of Tiler, 1 Salk. 113; S. C. . 6 Mod. 162; Bull. N. P. 50.

(d) Buch v. Owen, 5 T. R. 409.

(e) Id. 410. And see 2 Bl. Comm. 448.

(f) Vid. supra, p. 60, in the preceding section, as to acceptance of part of goods sold where the entirety of the contract is destroyed.