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Cuap. IV.

an actual acceptance by the latter, with an intention of taking to the possession as owner, by virtue of a contract of sale, which intention is to be gathered from his outward acts. Where, therefore, the defendant purchased some earrings at an auction, and they were immediately delivered to him, and he received them without making any objection, but after they had been in his hands a few minutes, he stated that he had been mistaken in the price, and refused to keep them, the court set aside a verdict for the plaintiff and granted a new trial. (a)

Again, where the vendee of several hogsheads of sugar, upon receiving notice from the carrier of their arrival, took samples from them, and for his own convenience desired the carrier to let them remain in his warehouse until he should receive further directions, and before they were removed he became bankrupt, it was held that the transaction was at an end as soon as the samples were taken from the hogsheads, as that was a complete act of ownership, and that the vendor was not entitled to stop the goods. (b)

But where the defendant gave a written order for ten firkins of butter, which were to be sent to him by a particular carrier, and the plaintiff sent by that carrier twelve firkins instead of ten, and the defendant refused to receive more than ten firkins, and as the carrier could not deliver less than the whole number sent, he refused to take the butter at all, but however drew a sample from

(a) Phillips v. Bistolli, 2 B. & C. 511; and see Bowes v. Pontifex, 3 Fos. & F. 739; Bar. nett v. Farley, 12 W. R. 748 ; 11 L. T. (N. S.) 107; Cunlife v. Harrison, 6 Exch. 903; Smith

v. Hudson, 6 B. & S. 431; 34 L. J. Q. B. 145.

(6) Foster v. Frampton, 6 B. & C. 107; and see Nicholson v. Bower, 1 E. & E. 172; Heinekey v. Earle, 8 E. & B. 428.

It was

one of the firkins, it was held that there had been no CHAP. IV. acceptance.(a) 'In Dodsley v. Varley, (b) wool was bought; the price was Special lien or

interest. agreed on, but it would have to be weighed; it was then removed to the warehouse of a third person, where the defendant's agent collected the wools which he purchased for the defendant from various persons, and to which place the defendant sent sheeting for the packing up of such wools. There it was weighed together with the other wools and packed, but it was not paid for. the usual course for the wool to remain at this place till paid for. It was argued that because, by the course of dealing, the defendant was not to remove the wool to a distance before payment of the price, the property in it had not passed to the defendant, or that the plaintiff retained such a lien on it as was inconsistent with the notion of an actual delivery. It was held that the defendant was in actual possession of the wool as soon as it was weighed and packed, and that it was thenceforward at his risk; but that the plaintiff had, not what is commonly called a lien, determinable on the loss of possession, but a special interest, sometimes, but improperly, called a lien growing out of his original ownership, independent of his actual possession, and consistent with the property being in the defendant, and that he retained this in respect of the term agreed on that the goods should not be removed to their ultimate place of destination before payment.(c) In certain cases, the acceptance of a sample of goods Acceptance of

sample. (a) Gorman v. Boddy, 2 C. & (c) And see Howe v. Ball, 7 K. 145; and see Cunliffe v. B. & C. 484 ; Aldridge v. John. Harrison, 6 Exch. 903.

son, 7 E. & B. 885. (6) 12 A. & E. 632.

sold amounts to an acceptance of the goods themselves, if the sample formed a part of the bulk of the goods, and was taken by the purchaser to make up the whole amount bought. The leading case on this point is Hinde v. Whitehouse ; (a) there sugar was sold by samples drawn from the bulk, and after the sale the samples were delivered to, and accepted by, the purchaser, to make up the quantity purchased. It was held that such acceptance was sufficient to take the case out of the statute.(b)

In Gilliat v. Roberts, (c) the defendant agreed to buy 100 quarters of wheat, “not to weigh less than nine and a half stone neat imperial measure, to be made up eighteen stone neat," from the plaintiff, and sent his servant for three sacks of the wheat, which were accordingly delivered; on that occasion these sacks weighed eighteen stone neat, but the weight was not then tested according to the imperial measure, nor had it received a final dressing which it is usual for wheat to receive before it is delivered to the buyer. The defendant did not return the sacks. It was held that there was only one contract between the parties, that the defendant had received the three sacks, which were a portion of the bulk, and that this was a part acceptance within the statute.

In Gardner v. Grout, (d) the contract was for the sale of certain sacks and bags. Four days after the sale the plaintiff, the buyer, went to the defendant's warehouse and asked for samples of the goods, which were given him by the defendant's foreman, and which he promised to pay for when the bulk (which was all there at the time) was taken away. The samples so given to the plaintiff (a) 7 East, 558.

Holt, 178. (b) And see Klinitz v. Surry, (C) 19 L. J. Ex. 410. 5 Esp. 267; Talver v. West, (d) 2 C. B. (N. S.) 340.

were by the defendant's order weighed and entered in Chap. IV. his order book. It was held that as the plaintiff had received part of the bulk there had been a sufficient acceptance. But if the sample delivered is not part of the bulk, Sample not

part of bulk. but is merely a collateral thing, a specimen of what the seller is endeavouring to dispose of, then the acceptance of it will not be sufficient to take the case out of the statute.(a)

In Simmonds v. Fisher, (b) the plaintiff showed the defendant samples of wine, which the latter agreed to buy; and after the bargain was concluded, the buyer asked to have the samples handed over to him, and wrote on the labels the prices agreed upon. An action having been brought against him for not accepting the wine, the taking the samples was relied on by the plaintiff as a part acceptance, so as to take the case out of the statute. But Wightman, J., directed a non-suit. This case was distinguished in Gardner v. Grout, (c) Cockburn, C. J., saying: “That is a very different case from

There the buyer never saw the bulk, the things handed to him really were mere samples. But here the plaintiff receives part of the very things which he has already bought.” It is not necessary that there should have been an Constructive

acceptance and actual acceptance and receipt in the sense of goods being receipt. transferred from one person to another, but there may be constructive acceptance and receipt; where goods are ponderous and incapable of being handed over from one person to another there need not be an actual delivery, but

(a) Klinitz v. Surry, 5 Esp. (6) Cited in Gardner v. Grout, 267; Cooper v. Elston, 7 T. R. 2 C. B. (N. S.) 342. 14; Talver v. West, Holt, 178. (C) Supra.

the present.

CHAP. IV.

a

it may be done by that which is tantamount, such as the delivery of the key of a warehouse in which the goods are lodged, or by delivery of other indicia of property;(a) for the larger the bulk, the more impracticable it is that there should be a manual receipt; something there must be in the nature of constructive receipt, as there is constructive delivery.(b) And therefore the question as to whether there has been acceptance or not is one of “fact for the jury, not matter of law for the judge.” (c) The acceptance required by the statute must be very clear and unequivocal; and it is a question for the jury whether, under all the circumstances, the acts which the buyer does, or forbears to do, are an acceptance or otherwise.(d)

The acceptance and retention of a bill of lading by the consignee may be equivalent to an actual acceptance of the goods, if he exercises dominion and ownership over it, or deals with it so as to transfer the right of property in the goods to a third party. (e)

If after goods have arrived the vendee does any act to the goods, of wrong if he is not owner of the goods, and of right if he is owner of the goods, the doing of that act is evidence that he has accepted them ;(f) as for instance, if he sells or attempts to sell

Acceptance of bill of lading.

a

Acts of ownership by vendee evidence of acceptance.

(a) Chaplin v. Rogers, 1 East, citing Bushel v. Wheeler, ib. 442 194, per Lord Kenyon, C. J. n.; and see Parker v. Wallis,

(6) Bushel v. Wheeler, 15 Q. 5 E, & B. 21; Nicholle v. Plume, B. 442, per Williams, J.; see 1 C. & P. 272; Simmonds v. also Marshall v. Green, L. R. 1 Humble, 13 C. B. (N. S.) 258. C. P. D. 35.

(e) Meredith v. Meigh, 2 E. (c) Edan v. Dudfield, 1 Q. & B. 364 ; 22 L. J. Q. B. 401 ;

; B. 306-7, per Denman, C. J. Currie v. Anderson, 2 E. & E.

(d) Morton v. Tibbett, 15 Q. 592 ; 29 L. J. Q. B. 87. B. 441 ; 14 Jur. 669 ; 19 L. J. (1) Parker v.

Wallis, 5 E. & Q. B. 382, per Lord Campbell B. 28, per Erle, J.

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