cordingly so held in the case of Kent v. Hutchinson,() lately decided in the Common Pleas.

The subject of the action in that case, which was for goods sold and delivered, was a bale of sponge, sent by the plaintiff, a wholesale dealer in that article, residing in London, to the defendant, a retail dealer residing in Staffordshire. *A short time before the sponge was sent by the plaintiff, he had been at the place where the defendant resided, and had received from him a verbal order, under which he had acted in sending the sponge, and the price charged was 11s. per pound. Soon after the sponge had been sent, the defendant wrote the following letter to the plaintiff :“After receiving a letter from your house in town, stating that the bale of sponge was sent by your direction, I called in a friend or two who are competent judges of the article, and asked them to say, according to the present price of sponge, what it was worth; the answer was, not more than 68. per pound; I have therefore, returned it to you by the same conveyance it was forwarded by to this place. In future, I will select what sponge I may want personally; otherwise will appoint some confidential friend for that purpose." The plaintiff's son being at the defendant's house soon after the sponge was returned, was told by him that he had resolved not to keep the article, because it was not so good as was expected. It was objected for the defendant, that as this was a contract for the sale of goods of more than 10%. value, the case fell within the 17th section of the sta tute of frauds. And Lord Alvanley, who tried the cause, was of that opinion; and his Lordship afterwards, upon a motion to set aside this nonsuit, declared that he still continued of opinion, that the evidence did not take the case out of the statute; for how was any judgment to be formed as to the nature of the contract between the parties: possibly the order was for the best, possibly for the second best sponge, or for sponge of some peculiar quality; all which circumstances are left in a state of uncertainty. It was this very uncertainty, and the frauds to which it might lead, that the statute was meant to guard against. The only affirmance of any contract to be collected from the evidence, was an affirmance of some sort of order for some sort of sponge, and it appeared, that the moment the article reached the defendant, and was examined, he sent it back to the plaintiff, saying

(1) 3 Bos. et Pull. 232.

*[ 177]

* [178]

There must be an abso

ance to make

clude the

that it was not that sort of sponge which he wanted and had or dered. The defendant's letter, therefore, his Lordship said, could not, as it appeared to him, be construed *into any thing like an acceptance, so as to bring the case within the exception which had been relied upon. The rest of the judges were clearlo of the same opinion with his Lordship, and particularly Mr. J. Chambre observed, that certainly there was no acceptance of the goods by the defendant, unless a refusal could be considered as amounting to an acceptance.

It appears, therefore, that with respect to the buyer, there must be an absolute acceptance, and such as completely affirms lute accept the contract; though this acceptance need not be in express an actual de- terms, but may arise constructively out of the acts of the vendee, livery effec- as we have seen in the before cited case of Chaplin v. Rogers. tual, to pre- But it seems clear, that if there has been a delivery, either actual vendee from or virtual, by the vendor, in pursuance of a verbal sale, he has objecting to the want of lost the power of retractation under cover of the statute, if the writing. vendee chuses to treat the contract as complete. Thus, in all those cases wherein the law would regard the goods as vested in a consignee or vendee absolutely as against both parties, where such goods had been sent in execution of a written order; it should seem that such delivery would be perfect and conclusive against the consignor or vendor under a verbal contract, notwithstanding the statute, upon the principle of considering the contract as executed on his part, so as to enable the buyer or consignee to say the contract was complete, by testifying in any manner the accession of his own consent or acceptance.

Of the doctrine with respect to the vesting by

as between

Where there is a written evidence of the contract, so as to put the statute out of the question, the doctrine is of old standdelivery to ing, that if the purchaser of goods orders them to be sent to the carrier, him by a particular conveyance, he is liable to the seller though the consign- the goods be lost by the carrier; as in Vale v. Bayle,(m) which or and consignee. was an action for goods sold and delivered, and at the trial, a letter from the defendant to the plaintiff was produced, containing a commission to the plaintiff for the goods in question, after which was a postscript, saying, "pray be expeditious in sending them, and, instead of letting them go by way of Bristol, send them by land carriage." The delivery of the goods to the carrier was proved; and it appeared that there was no other con

*[ 179.]

(m) Cowp. 294.

veyance by land carriage, than that which was used. The goods having been lost on the road, it was insisted on behalf of the consignor, the plaintiff, that the delivery to the carrier was a delivery to the defendant; but the judge being of a different opinion, directed a nonsuit. But a rule nisi which was granted for setting aside the nonsuit was made absolute, and a new trial granted upon the doctrine, that if a vendor takes upon himself actually to deliver the goods to the vendee, he stands to all risks; but if the vendee order a particular mode of conveyance, the vendor is excused; the delivery being complete in law, and the property being vested in the vendee.

This principle was, in a subsequent case, confirmed by its ap plication to the question, as to the proper party to bring the action in case of loss by the carrier. In Dawes v. Peck,(n) it was decided, that though the seller had paid for the booking, yet that he could not maintain the action against the carrier, which was exclusively the right of the vendee; the Chief Justice() observing, that he could not subscribe to the argument urged on behalf of the plaintiff-that the right of property on which this action was founded, was to fluctuate according to the choice of the consignor, or consignee; and that, consequently, either of them might, at his pleasure, maintain an action against the car. rier for the non-delivery of the goods. His Lordship was of opi nion, that the question must be governed by the consideration, in whom the legal right was vested, for that he was the person who had sustained the loss, if any, by the carrier. The damnum et injuria were to him and not to the vendor, the plaintiff. His Lordship further said, that he did not find that any thing which he had advanced, had been broken in upon by the two cases of Davies v. James,(^) and Moore v. Wilson,(9) which had been relied upon in the argument. That he fully adopted the distinction taken in those cases. That in one case the action brought by the consignor against the carrier was sustained, because the consignor was to be answerable for the price of the carriage; he stood, therefore, in the character of an insurer to the consignee, for the safe arrival of the goods. And that the subsequent case (n) 8 T. R. 330. (0) Lord Kenyon. (p) 5 Burr. 2580. (q) 1 T. R

659.

of Moore v. Wilson, proceeded on the same ground.(85a) The other judges agreed with his Lordship; Lawrence J. adding, that the circumstance of the consignor's having paid the carrier for booking the goods, was not evidence of a special contract between them, so as to bring that case within those of Davies v. James, and Moore v. Wilson, which had been cited at the bar.

In Vale v. Bayle,(r) above referred to, the designation of the particular mode of conveyance, seemed to have been a circumstance of great weight in the decision of the court; and in the recent case of Dawes v. Peck, it was in proof that the carrier was specially appointed by the consignee, though it does not appear what share that fact might have had in influencing the determination. In a very late case, however, in the Common Pleas,(s) the question came before the court unembarrassed with this fact; and the late Lord Alvanley, in speaking to the point, observed, that it appeared to him to be á proposition as well settled as any in the law, that if a tradesman order goods to be sent by a carrier, though he do not name any particular carrier, the moment the goods are delivered to the carrier, such delivery operates as a delivery to the purchaser; the whole property immediately vests in him; he alone can bring the action for any injury done [181] to the goods; and if any accident happen to them, it is his risk. The only exception to the purchaser's right over the goods, was, that the vendor, in case of the former becoming insolvent, might stop them in transitu.

This vesting by delivery to the carrier, takes

the case out of the sta

These cases have been produced for the purpose of illustrat ing the doctrine, with its legal consequences of a virtual delivery, which we have seen is capable of transferring the property as effectually as an actual delivery. In the instances adduced, the tute, as to statute was out of the question, as the consignments were made the vendor, he having in consequence of written orders. But the inference they afford done his ulto our present purpose, is, as it seems, that if the orders had timate part in the trans- been verbal, the delivery of the goods to the carrier would have action; tho' been such an execution of the agreement as to the vendor, as to it seem's that, until put it out of his power to have taken any advantage of the statute something is

done by way of acceptance on the part of the vendee, or consignee,

(r) Cowp. 294. (a) Dutton v. Solomonson, 3 Bos. et Pull. 582.

(85a) But it is not easy to collect this from the report of the casewhich see.

cluded from Jaking advantage of

the statute.

in reclaiming the goods. But in respect to the vendee, his accept- he is not preance would still be wanting to place him in the same predicament of inability to ground upon the statute a refusal to complete the contract. The vendor having done his ultimate part in the transaction, by the delivery to the carrier, it is competent to the vendee to conclude the contract, by any act of express or implied acceptance; but until such acceptance, it is clear, upon the authority of Kent v. Hutchinson,(7) and the analogy of the other decisions, that he may refuse to execute the parol agreement, and may even examine the goods, and after examination, reject them. But though, as appears by the above authorities, whether the carrier or the mode of conveyance be specially designated or not by the vendee, the vesting in the consignee equally takes place at the moment of the delivery to the carrier by the consignor; a difference may, nevertheless, possibly arise from the state of this fact, in respect to the question upon the statute; for if the order is particular both as to the goods and the carrier, it seems to furnish a plausible ground, at least for insisting upon the effect of such *selection of [ 182 ] the thing, and designation of the receiver as amounting to an acceptance, with which the actual delivery, though posterior in time, might be coupled by relation, so as to put the whole transaction out of the reach of the statute.

Nor can it with reason be contended, upon the principle of the foregoing argument, that if a verbal order is given for goods of such a price and such a quality, there may be evidence to show that the goods sent were answerable in both these respects, and that then the conditional acceptance becomes absolute by the proof of these facts, so as to make it an acceptance by the buyer from the beginning, and capable, therefore, of taking the case out of the statute, as much as the selection of the goods and the appointment of the carrier or conveyance in the case above supposed for a difference there clearly is in substance between these In that which was last supposed, the acceptance can only be shown by first proving the contract; whereas, where the goods are fixed upon, and the carrier named by the buyer, the contract is established upon the evidence of the acts of the vendee. In the one case you get at the acceptance through the heart of the

cases.

(t) 3 Bos. et Pull. 232.