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The defendant seems to have expressed an opinion that the hay was bad, but some time after, one Loft, having agreed for the purchase of part of the hay from him at an advanced price, the defendant told him to go and see if it was good. Loft not only thought it good, but took away part without the knowledge or assent of the defendant. The part resold to Loft seems to have been for less than 10/., in which case, the bargain between him and the defendant may have been binding, so that the defendant could not have revoked the authority given to Loft by it, but the case does not seem to have turned on that. It was left to the jury to say, if there had been an acceptance, and they having found there was, the King's Bench would not disturb their verdict. The expressions used by Lord Kenyon in delivering judgment, show that he thought there might be an acceptance and actual receipt without a removal of the goods; and that the conduct of the defendant, in bargaining about the re-sale, was an admission that the contract was good; but he winds up by saying, "as "upon the whole justice has been done, the verdict "ought to stand;" which almost means that the verdict was contrary to evidence. This case, therefore, does not decide much.
In Anderson v. Scott (a), in 1806, at Nisi Prius, the action was by the purchaser against the vendor for not delivering wine, according to a verbal agreement for the sale of it for a price exceeding 10/. The
(a) Anderson v. Scott, 1 Camp. 235, n.
spills had been cut in the presence of both parties, and the purchaser's initials were marked on the casks, which remained in the vendor's cellars. It was objected, that the bargain was void by the Statute of Frauds, but Lord Ellenborough held that the marking of the casks in the presence of all parties amounted to a delivery, and that though there had been an incipient delivery sufficient to take the case out of the Statute of Frauds, yet that delivery not having been perfected, the plaintiff had a right of action to recover damages for the non-completion of the contract.
In Hodgson v. Le Bret (a), in 1808, the same Judge ruled that the purchaser having written her name on some goods to denote that she had purchased them, though they remained in the vendor's shop, took the case out of the statute. Parke, J., has observed, "that in the older cases the Court did not advert to "the words of the statute (b)." Certainly, in Anderson v. Scott, Lord Ellenborough, if the words of the statute were present to his mind, must have thought that there might be an actual receipt without any delivery, which is not the popular meaning of the words. It appears from Hurry v. Mangles (c), that Lord Ellenborough considered the vendor's rights gone under circumstances but little stronger than those existing in Hodgson v. Le Bret, and Anderson v. Scott. He seems to have thought that the circumstance of the purchaser exercising acts of ownership with
(a) Hodgson v. Le Bret, 1 Camp. 233.
(6) 9 B. & C. 577.
(c) Hurry v. Mangles, 1 Camp. 452.
the assent of the vendor, proved a complete agreement between them to consider the possession of the vendor as thenceforward that of a mere agent of the purchaser.
In Elmore v. Stone (a), in 1808, the Common Pleas acted upon this principle. In that case the defendant, the purchaser of horses under a verbal agreement from the plaintiff, a livery stable keeper, had sent him word that he would have the horses, but that as he had neither servant or stables, the plaintiff must keep them at livery for him. The plaintiff assented, and moved the horses into another stable (which, however, seems material only as an indication of assent). The Common Pleas, after taking time to consider, held that the bargain was bound. Mansfield, C. J., in delivering the opinion of the Court, said, "After the "defendant had said that the horses must stand at "livery, and the plaintiff had accepted the order, it "made no difference whether they stood at livery in "the vendor's stable, or whether they had been taken "away and put in some other stable. The plaintiff "possessed them from that time not as owner "(vendor?) of the horses, but as any other livery "stable keeper might have them to keep. Under "many events, it might appear hard if the plaintiff "should not continue to have a Hen upon the horses "which were in his own possession, so long as the "price remained unpaid; but it was for him to "consider that before he made his agreement. After "he had assented to keep the horses at livery, they
(a) Elmore v. Stone, 1 Taunt. 458.
"would on the decease of the defendant have become "general assets; and so if he had become bankrupt, "they would have gone to his assignees. The plaintiff "could not have retained them, though he had not "received the price."
In Blenkinsop v. Clayton (a), in 1817, after a verbal sale of a horse, the purchaser offered to resell it to a third party, but afterwards refused to go on with the bargain: the vendor brought an action for the price, and on proof of the facts above-stated had a verdict subject to leave to move to enter a. nonsuit, on the ground that there was nothing to satisfy the statute. The Court of Common Pleas thought that there might be some evidence of a delivery, and therefore granted a new trial, not a nonsuit.
In all these cases there seems to have been ample evidence of an acceptance of the goods, but scanty evidence of any actual receipt, if by that is to be understood a taking of possession; indeed, in Blenkinsop v. Clayton, as reported, there seems to have been none. After the decision of that last case, the current of authority set the other way.
In Howe v. Palmer (b), in 1820, there was a verbal sale of 12 bushels of tares at 11. per bushel, the purchaser to send for them. The purchaser said he had seen the tares, and had no immediate use for them, he therefore requested that they might remain at the vendor's till seed time, to which the vendor assented. The vendor then went home, measured out 12 bushels,
(a) Blenkinsop v. Clayton, 7 Taunt. 597.
and set them aside for the purchaser. The King's Bench held that these facts did not amount to an acceptance and receipt. The case was distinguished by the Court from Elmore v. Stone, (1 Taunt. 458), but Bayley, J. expressed a doubt if that case was well decided.
In Tempest v. Fitzgerald (a), in the same year, the facts were, that a horse was sold by parol for 45/. ready money; after the sale, the purchaser mounted him and tried him, and made some changes in his harness; he then asked the vendor to keep him another week, the vendor said he would to oblige him; before the week expired the horse died, and the question was who should bear the loss? The King's Bench decided that these acts could not amount to an acceptance and receipt, unless the purchaser had a right under the bargain to take away the horse. He could not take away the horse unless he paid the price, or the vendor waived his right of lien, which the facts did not show.
In Carter v. Touissaint (b), A. D. 1822, the facts approached very nearly indeed, to those in Elmore v. Stone, (1 Taunt. 458). The defendant purchased by parol from the plaintiffs, a horse for 30/.; the horse was by the defendant's consent and approval fired, and the plaintiffs agreed to keep him for twenty days without charge; at the end of the twenty days the plaintiffs sent the horse to grass at the defendant's request, but entered it in their own name, as the defendant wished to conceal his having bought it.