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the goods, or if he disposes absolutely of the whole or any part of them, or attempts to do so, or alters the nature. of the property. (a)
In Chaplin v. Rogers (b) it was held that evidence that the vendee of a stack of hay actually sold part of it to another person, was sufficient to warrant the jury in finding a delivery to, and acceptance by, the vendee, thereby taking the case out of the statute.
In Blenkinsop v. Clayton (c) the defendant bought a horse, and took a third person to the vendor's stable, where the horse still was, and offered to sell it to him at a profit; and it was held that there had been a sufficient acceptance. (d)
In Baines v. Jevons (e) it appeared that the defendant, after the sale of a fire-engine to him by the plaintiff, had taken a person to look at it, and had mentioned who were likely to want to buy it, and that to another person the defendant said, "I know what I am going to do with it," and that to a third he said, "I have a concern in the engine." It was held that it was for the jury to consider on this evidence, whether the defendant had treated the fire-engine as his, and dealt with it as such, for that, if so, the plaintiff was entitled to a verdict. (ƒ)
In Beaumont v. Brengeri, (g) the defendant agreed to purchase a carriage from the plaintiff, at the same time desiring that certain alterations might be made in it.
(a) Lillywhite v. Devereux 15 M. & W. 291, per Alderson, B.
(b) 1 East, 192; see also Marshall v. Green, L. R. 1 C. P. D. 35.
(c) 7 Taunt. 597.
(d) See also Chapman v.
(f) See also Saunders v.
(g) 5 C. B. 301.
The alterations were made and the defendant used it, in order that, as he was going to take it abroad, it might pass the custom-house as a second-hand carriage. He then returned it to the custody of the plaintiff. It was held that there was evidence of a specific bargain for the particular carriage; that the defendant assumed to be the owner; that the plaintiff kept the carriage as agent for the defendant, and that there had been a sufficient acceptance. (a)
But where the defendant employed the plaintiff to construct a waggon, and while the vehicle was in the plaintiff's yard unfinished, procured a third person to fix on the iron-work and a tilt, it was held that there had not been any acceptance, though it might have been otherwise if the work had been done after the waggon was finished. (b)
Where A contracted with B to purchase of him the trunks of certain oak-trees then felled and lying at Hadnock, about twenty miles from Chepstow, the course of dealing being for A's agent to select and mark those portions which he intended to purchase, and for B to sever the tops and sidings and float the trunks down the river Wye to A's wharf at Chepstow, and there deliver them, and after a portion of the timber had been so delivered and the whole paid for, B became bankrupt, whereupon A sent his men to B's premises at Hadnock, and severed and carried away the marked portion of certain trees, it was held that no property in the trees, or any portion of the trees, which had not been delivered
(a) And see Wright v. Percival, 8 L. J. (N. S.) Q. B. 258.
(b) Maberley v. Sheppard, 10 Bing. 100; and see Laidler v.
Burlinson, 2 M. & W. 615; Jordan v. Norton, 4 M. & W. 155; Lucy v. Mouflet, 5 H. & N. 229.
by B, passed to A by the contract, and that there was no delivery or acceptance to satisfy the statute, and consequently the assignees of B were entitled to recover the value in trover. (a)
In Kent v. Huskisson, (b) the defendant ordered a bale of sponge at 11s. per pound from the plaintiff. Upon receipt of the goods the defendant examined them, and returned them to the plaintiff, at the same time writing a letter to him stating that he had examined the sponge, and finding it not worth more than 6s. per pound, he had sent it back. It was held that this letter did not amount to such an acceptance of the goods as would take the case out of the statute.
In Parker v. Wallis, (c) the plaintiff sent twenty sacks of seed to defendants in part performance of a verbal contract for the sale of seed to the value of more than £10. On the same day one of the defendants informed the plaintiff that he had heard the seed had arrived out of condition. The plaintiff asserted that it was in condition. Immediately afterwards the defendants wrote to the plaintiff rejecting the seed, and in one of the letters informed him that "the twenty sacks which you authorized us to receive for you, and to lay out thin in consequence of its being hot and mouldy," would be returned.
On the trial, the above facts being proved by the plaintiff, who gave evidence that he did not authorize the defendants to spread out the seed, and that it was not hot and mouldy, the judge directed a non-suit, with leave to enter a verdict if there was any evidence of acceptance and actual receipt of part of the goods.
(a) Acramanv. Morrice, 8 C.B. 449; and see Smith v. Surman, 9 B. & C. 561; 4 M. & R. 455.
(b) 3 B. & P. 233.
(c) 5 E. & B. 21, overruling Curtis v. Pugh, 10 Q. B. 111.
It was held by Lord Campbell, C. J., and Erle and Crompton, J. J., dissentiente Wightman, J., that, there being evidence to go to the jury that the seed was spread out thin, neither because it was out of condition, nor by plaintiff's authority, there was evidence that it was spread out thin as an act of acceptance, and therefore the nonsuit was wrong; but the Court thought the evidence too slight to justify them in entering a verdict for the plaintiff, and directed a new trial.
In Morton v. Tibbett, (a) the defendant purchased wheat of the plaintiff by sample, and directed that the bulk should be delivered on the next morning to a carrier named by himself, who was to convey it to the market town of Wisbeach; and the defendant himself took the sample away with him. On the following morning the bulk was delivered to the carrier, and the defendant re-sold it at Wisbeach on that day, by the same sample. The carrier conveyed the wheat, by order of defendant, who had never seen it, to the sub-vendee, who rejected it as not corresponding with the sample; and the defendant, on notice of this, repudiated his contract with the plaintiff on the same ground. It was held that there was evidence to warrant a jury in finding acceptance and actual receipt by the defendant.
Lord Campbell, C. J., said: "The acceptance is to be something which is to precede, or at any rate to be contemporaneous with, the actual receipt of the goods, and is not to be a subsequent act after the goods have been actually received, weighed, measured, or examined. (b) As the Act of Parliament expressly makes the acceptance and actual receipt of any part of the goods sold sufficient,
(a) 15 Q. B. 428; 19 L. J. Q. B. 382.
(b) See Cusack v. Robinson, 1 B. & S. 310; 30 L. J. Q. B. 261.
it must be open to the buyer to object, at all events, to the quantity and quality of the residue, and even where there is a sale by sample, that the residue offered does not correspond with the sample. We are, therefore, of opinion that, whether or not a delivery of the goods sold to a carrier or any agent of the buyer is sufficient, still there may be an acceptance and receipt within the meaning of the Act, without the buyer having examined the goods, or done anything to preclude him from contending that they do not correspond with the contract. (a) The acceptance to let in parol evidence of the contract appears to us to be a different acceptance from that which affords conclusive evidence of the contract having been fulfilled,
"We are, therefore, of opinion in this case, that although the defendant had done nothing which would have precluded him from objecting that the wheat delivered to Edgley (the carrier) was not according to the contract, there was evidence to justify the jury in finding that the defendant accepted and received it."
In Hunt v. Hecht, (b) Martin, B., said, referring to Morton v. Tibbett: "That case decides no more than this, that where the purchaser of goods takes upon himself to exercise a dominion over them, and deals with them in a manner inconsistent with the right of property being in the vendor, that is evidence to justify the jury in finding that the vendee has accepted the goods, and actually received the same." (c)
The marking of goods with the name of a purchaser Marking
(a) See Currie v. Anderson,
2 E. & E. 592; 29 L. J. Q. B. 87. (b) 8 Ex. 818.
(c) And see Coombs v. Bristol
and Exeter Railway Co. 3 H. &