was held, that this did not constitute an acceptance by the vendee, so as to take the case out of the statute (h). A., a merchant in London, had been in the habit of selling goods to B., resident in the country, and of delivering them to a wharfinger, in London, to be forwarded to B. by the first ship. In pursuance of a parol order from B., goods were delivered to, and accepted by, the wharfinger, to be forwarded in the usual manner. The ship containing the goods was lost. It was decided that this was no acceptance by the buyer (¿). In Nicholle v. Plume (k), the goods having been verbally ordered, were sent by a waggon to the defendant, who refused to take them in, but caused them to be lodged in a warehouse near his premises, but not belonging to him. The goods were neither returned, nor was any notice given by defendant that he would not accept them. Best, C. J., held, that there were no delivery and acceptance to satisfy the statute. The defendant's acts, in selecting and cutting goods, (linendrapery), from a larger bulk, measuring and marking them, and ordering a bill of parcels to be sent with the goods, do not constitute a sufficient delivery and acceptance (7). And it seems, that the marking casks of wine, sold by parol, and lying at the London Docks, with the initials of the purchaser, at his request and in his presence, cannot be considered a sufficient acceptance within the statute; at least if the time of payment had not, when the casks were so marked, been fixed, so that the contract was then incomplete (m). And in no case can the marking goods with the name of the purchaser, by his consent, constitute an acceptance within the act, if it be not evident that the name was affixed, with intent to denote that the vendee had purchased the article, and had appropriated it to his own use (n). (h) Howe v. Palmer, 3 B. & Al. 321. (i) Hanson v. Armitage, 5 B. & Ald. 557; 1 D. & R. 128. Qy. as to the case of Hart v. Sattley, 3 Camp. 528. (k) 1 C. & P. 272. (1) Baldey v. Parker, 2 B. & C. 37; 3 D. & R. 220, S. C. (m) Proctor v. Jones, 2 C. & P. 532. In this case the prices had been mentioned, but the time of payment was not fixed. The assertion in the text seems, however, to be correct. In Anderson v. Scott, 1 Camp. 235, note, (cited in Boulter v. Arnott, 1 C. & M. 334,) Lord Ellenborough held, that the cutting of the pegs in the casks, by which the wine was tasted, and the marking of the plaintiff's initials. on the casks by the defendant's agent in the presence of all parties, amounted to a delivery under the statute. But this decision seems to be doubtful. (n) Hodgson v. Le Bret, 1 Camp. 233; cited in Boulter v. Arnott, 1 Č. & M. 334. Goods of the value of 1441. were made to order, and remained in the possession of the vendor, at the request of the vendee, with the exception of a small part, which the latter took away. It was held, that there was no acceptance of the residue within the statute (o). Nor will the removal of goods, in the vendor's own boat, to another warehouse of his own or his agent's, on a stage towards the defendant's residence, by the direction of the latter, amount to a sufficient delivery (p). And where goods were knocked down to a bidder at an auction, and were handed to him, and remained in his possession for some minutes, and until he refused to take them, it was held to be a question for the jury, whether there had been a complete delivery and acceptance between the parties; it appearing that, by the conditions of sale, the vendee was to pay a deposit, and the residue of the price, before the goods were removable by him (9)⋅ The case of Smith v. Surman (r) deserves attention. 4. being the owner of trees growing on his land, verbally agreed with B., while they were standing, to sell him the timber at so much per foot; B. afterwards offered to sell the butts of the trees to a third person, and said he would convert the tops into building stuff. 4. afterwards, by letter, required B. to pay for the timber, which he B. had bought of him. B. wrote a letter, in answer, stating, that he had bought the timber, but that he had bought it to be sound and good, and that it was not so. It was held, that there had been no part acceptance or actual receipt of the goods, to satisfy the statute; inasmuch as there was nothing to shew that the purchaser had divested himself of his right to object to the quality of the goods, or that the seller had lost his lien for the price. So in Boulter v. Arnott (s), it was held that if goods are sold upon the terms that they shall be paid for on delivery, the vendor cannot sue the vendee as for goods sold and delivered, although they were packed in the vendee's boxes, by his consent; they remaining throughout the transaction in the vendor's possession. The Court seem to have considered that, assuming there was a (0) Thompson v. Maceroni, 3 B. & Cr. 1; 4 D. & R. 619, S. C. (p) Anstey v. Emery, 4 M. & Selw. 262. (q) Phillips v. Bistolli, 2 B. & C. 511; 3 D. & R. 822, S. C. (r) 9 B. & C. 561; post 316. sufficient acceptance by the vendee, there was not a sufficient delivery by the vendor to support the common count for goods sold and delivered. The delivery of a sample, which is not part of the thing sold, will not take the case out of the statute; but if the sample be delivered, and received, as part of the bulk, it then binds the contract (t). If several lots be separately knocked down to a purchaser, the acceptance of one lot would not constitute an acceptance of the others, because in law there is a distinct contract as to each lot (u). Where the contract is to deliver goods, or to supply a publication in parts or parcels at different intervals, at a certain price for each part, although the contract may be void for want of writing as regards the executory part of it, yet the prices of the parts actually received, are recoverable under a count for goods sold (x). It seems, that a parol contract for the sale of goods to be delivered, and which are accordingly delivered, within a year from the making of the bargain, but which by the terms of the contract, are not to be paid for until the expiration of that period, is not within the fourth section of the Statute of Frauds; which requires that an agreement which is not to be performed within a year from the making thereof, shall be in writing; because, in such case, all that is to be performed on one side, namely, the delivery of the goods, is done within a year (y). 2ndly. Of giving something in earnest, or in part of payment. After earnest given upon the sale of goods, the vendor cannot sell them to another, without a default in the vendee; and therefore if the vendee do not come and pay for, and take away the goods, the vendor ought to go and request him; and if he then do not come and pay for, and take away the goods in a convenient time, the agreement is dissolved, and the vendor is at (t) Hinde v. Whitehouse, 7 East, 558; Talver v. West, Holt, N. P. R. 178. (u) Ante, 307. (x) Mavor v. Payne, 3 Bing. 285; 11 Moore, 2. S. C. When part may be recovered under a binding entire contract, Oxendale v. Wetherell, 9 B. & C. 386. In these cases, the claim is upon a quantum meruit, or valebant,and not upon the void parol contract; Earl of Falmouth v. Thomas, 1 C. & M. 89. (y) See Boydell v. Drummond, 11 East, 152, per Lord Ellenborough; Bracegirdle v. Heald, 1 B. & Ald. 727, per Abbott, J.; ante, 58. liberty to sell them to any other person (≈). It seems, therefore, that earnest given upon a sale of goods, does not absolutely alter, or bind, the property of the goods contracted for, but only binds the bargain (a); and entitles the vendee to the goods, if not guilty of an express default, in subsequently refusing to pay for them. To constitute a payment as earnest, or a part payment, within the statute, there must be an actual transfer or delivery of the thing, or money, agreed to be given as earnest, or part payment. Therefore, if the purchaser of goods draw the edge of a shilling over the hand of the vendor, and return the money into his own pocket, which in the north of England is called the striking off a bargain, the act is not satisfied (b). The delivery of a bill of exchange, or promissory note, on account, or in payment, of the price of goods sold under a parol contract, would take a case out of the statute; such instrument amounting to payment, till dishonoured (c). 3rdly. OF THE CONTENTS AND SIGNATURE OF A CONTRACT IN WRITING FOR THE SALE OF GOODS. The object of the Statute of Frauds was, that the note in writing should exclude all doubt as to the terms of the contract (d). A memorandum would be insufficient which did not mention the names of both the contracting parties, or their agents (e); and the price agreed to be given (ƒ). A mere offer or proposal in writing would not be sufficient, unless it were accepted in writing (g). But it is not necessary that the whole of the terms of the contract for the sale of goods should be comprised in one written (2) Per Holt, C. J., Langford v. Administratrix of Tiler, 1 Salk, 113; Bul. N. P. 50; Langford v. Administratrix of Tiler, 6 Mod. 162; Knight v. Hopper, Skin. 647; per Lord Ellenborough, Hinde v. Whitehouse, 7 East, 571; ante, 298, 299. (a) Id., Bul. N. P. 50; sed vide Back v. Owen, 5 T. R. 409; Com. Dig. Biens, (D) 3; 2 Bla. C. 448. (b) Blenkinsop v. Clayton, 7 Taunt. 597. The body of the report states that the seller produced the shilling, and returned it into his pocket, but this would seem to be a mistake. (c) Chitty B. 7th ed. 97; 8th ed. 80, note b, 84. (d) See Saywood v. Meale, Prec. Ch. 560; Clerk v. Wright, 1 Atk. 12; Ayliff v. Tracy, 2 P. W. 64; per Bayley, J., Scott v. Surman, 9 B. & C. 569, 570. See in general, ante, 59 to 62. (e) Champion v. Plummer, 1 New R. 272. The sale note in this case did not mention the vendee's name; Bateman v. Phillips, 15 East, 272; ante, 86, 87. (ƒ) Elmore v. Kingscote, 5 B. & C. 583; 8 D. & R. 343, S. C. (g) Ante, 10,59; Brant v. Brown, 3 B. & C. 668; 5 D. & R. 582, S. C. memorandum; it is sufficient if they can be collected from several distinct writings, having reference to the same agreement; or from subsequent letters, having reference to each other; whereby the transaction is admitted. Thus in Saunderson v. Jackson (h), it was decided, that whether or not, a bill of parcels, in which the vendor's name is printed, delivered to the vendee at the time of an order given for the future delivery of goods, be a sufficient memorandum within the statute; at all events, a subsequent letter, written and signed by the vendor, referring to the order, may be connected with the bill of parcels, so as to take the case out of the statute. So in Allen v. Bennet (i), it was held, that an order for goods, written and signed by the seller, in a book of the buyer, may be connected with a letter of the seller to his agent, mentioning the name of the buyer, and with a letter of the buyer to the seller, claiming the performance of the order, to constitute a complete contract. The purchasers of flour, wrote to the vendors, complaining of the quality of part which had been delivered; and in such letter stated the full terms of the contract. The vendors answered, in writing, by their attorney, that they considered that they had performed their contract, as far as it had gone, and were ready to complete the remainder; and unless the flour was paid for at the expiration of one month, proceedings would be taken. It was held, that a jury was warranted in concluding, that the contract mentioned in the vendor's letter, was the same as that particularised in the purchaser's letter; and that therefore the two writings constituted a sufficient memorandum of the contract under the statute (k). The defendant having purchased the lease of a house at a public auction, he afterwards wrote to the auctioneer, requesting him to send the key, and stating, that his auctioneer was desirous of taking an inventory of the fixtures. The auctioneers accordingly met, and disagreed as to the valuation, appointed an umpire, to whom they inclosed an inventory, stating the fixtures to be the property of the plaintiffs, and valued to the defendant. The (h) 2 B. & P. 238, cited in Kenworthy v. Schofield, 2 B. & C. 947; 4 D. & R. 556, S. C. (i) 3 Taunt. 169. (k) Jackson v. Lowe, 1 Bing. 9; 7 Moore, 219, S. C. See further, ante, 59. |