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Seem, however, exceedingly questionable, and no authority is given for either. In May field v. Wadsley ( a ), an outgoing tenant was allowed to keep a verdict on a count for crops bargained and sold, which he had obtained against the incoming tenant, who had agreed to take them at a valuation; and in Hallen v. Runder (b), in 1834, the Exchequer held that counts for fixtures bargained and sold were sufficient. But in the latter case it was expressly decided, that an agreement for the sale of fixtures between the landlord and the outgoing tenant was not a sale of goods, either within the Statute of Frauds or the meaning of a count for goods sold and delivered. It may be observed, that in both these cases the land was to pass to the purchaser, and the agreement was rather an abandonment of the vendor's right to diminish the value of the land, than a sale of anything; but it seems diflicult to make that consistent with the opinion of Bayley, J. in Evans v. Roberts: if a contract for a sale of crops or fixtures to one who takes the soil is only an abandonment of a right to sever them, it seems to follow that a sale of them in their unsevered state to one who does not take the soil, is only a transfer of the right to sever them.
The last case on the subject is Jones v. Flint (c), in 1839. There crops were sold by parol, and it was agreed that the vendor's cattle should run with the purchaser's in the after grass. There had been part
(a) Mayfield v. Wadsley, 3 B. & C. 357.
payment. The declaration was for crops bargained, sold, and carried away. The Court held, that it was clear that the crops were not an interest in land, and they considered the agreement about the after grass to amount to an agreement that the purchaser's cattle should eat the vendor's grass; not that the grass should become the purchaser's and the vendor's cattle eat it. They held, therefore, that there was no contract for the sale of an interest in land within the 4th section. No question arose about its being a sale of goods within the 17th section, as the part payment put an end to any objection upon that ground.
OF THE FIRST EXCEPTION.
Section I What constitutes an acceptance.
II And an actual receipt.
Having considered what contracts are within the 17th section of the Statute of Frauds, it becomes necessary to inquire what circumstances will satisfy the statute. It will be observed, on looking at the language of the statute that there are three different modes pointed out in which the contract may be made good, and it is convenient to treat of each of the three ways separately. First, then, what is meant by the first exception, viz., "except the buyer shall accept "part of the goods so sold, and actually receive the u same."
If we seek for the meaning of the enactment, judging merely from its words, and without reference to decisions, it seems that this provision is not complied with unless the two things concur: the buyer must accept, and he must actually receive part of the goods; and the contract will not be good unless he does both. And this is to be borne in mind, for as there may be an actual receipt without any acceptance, so may there be an acceptance without any receipt. In the absence of authority, and judging merely from the ordinary meaning of language, one would say that an acceptance of part of the goods is an assent by the buyer, meant to be final, that this part of the goods is to be taken by him as his property under the contract, and as so far satisfying the contract. So long as the buyer can, without self-contradiction, declare that the goods are not to be taken in fulfilment of the contract, he has not accepted them. And it is immaterial whether his refusal to take the goods be reasonable or not. If he refuses the goods assigning grounds false or frivolous, or assigning no reasons at all, it is still clear that he does not accept the goods, and the question is not whether he ought to accept, but whether he has accepted them. The question of acceptance or not is a question as to what was the intention of the buyer as signified by his outward acts.
The receipt of part of the goods is the taking possession of them. When the seller gives to the buyer the actual controul of the goods, and the buyer accepts such controul, he has actually received them. Such a receipt is often evidence of an acceptance, but it is not the same thing; indeed the receipt by the buyer may be, and often is, for the express purpose of seeing whether he will accept or not. If goods of a particular description are ordered to be sent by a carrier, the buyer must in every case receive the package to see whether it answers his order or not, it may even be reasonable to try part of the goods by using them; but though this is a very actual receipt, it is no acceptance so long as the buyer can consistently object to the goods as not answering his order. It follows from this that a receipt of goods by a carrier or on board ship, though a sufficient delivery to the purchaser, is not an acceptance by him so as to bind the contract, for the carrier if he be an agent to receive, is clearly not one to accept the goods.
On the whole the cases are pretty consistent with these suggestions and with each other, as to what forms an acceptance within the statute, though not as to the strength of the proof required to establish it. On the question of what constitutes an actual receipt there is some difficulty in reconciling the cases, but we shall return to this part of the subject after citing a few cases to show what is an acceptance.
In Hinde v. Whitehouse (a), in 1806, sugar was sold by auction under this, amongst other conditions:— M The sugars to be taken with all faults and defects, as "they now are at the King's weights and tares, with "the allowance of draft or re-weighed, giving up the "draft." Previously to the sale samples were drawn from each hogshead. It was proved that the samples used at such sales were always delivered to the purchasers as a part of their purchase to make up the quantity, and that in this particular case the samples had been delivered to and kept by the defendant, who was the highest bidder for sugar at a price above 101. The defendant's counsel contended that the samples were accepted as specimens only and not as part of
(a) Hinde v. Whitehouse, 7 East, 558.