CHAP. IV. Acceptance of one of several articles, acceptance of all if contract entire. with his consent will, if the other terms of the bargain have been settled, amount to an acceptance of the goods, although the goods remain in the possession of the vendor. But there must also be a delivery, and to constitute that the possession must have been parted with by the vendor, so as to deprive him of his right of lien. (a) In Anderson v. Scot, (b) the plaintiff went into the defendant's cellar and selected several pipes of wine, for which he agreed to pay a certain price: the spills or pegs by which the wine is tasted were then cut off; plaintiff's initials were marked on the casks by defendant's clerk in his presence, and the plaintiff took the gauge numbers. Lord Ellenborough held that upon these facts there had been an incipient though not perfected delivery. This case, however, has been disapproved of, see Saunders v. Topp. (c) In Proctor v. Jones (d) it was held that the marking by the vendor of casks of wine lying in the docks with the initials of the purchaser, at his request, and in his presence, the terms of payment not having been settled at the time, and consequently the contract not being complete, was not an acceptance under the statute. Where several articles are bought at the same time, and the contract is proved to be entire, the acceptance of some of them is an acceptance of the whole. Where the plaintiff sold to the defendant twenty hogsheads of sugar out of a larger quantity which he had in bulk, and filled four hogsheads and delivered them to the purchaser, who (a) Hodgson v. Le Bret, 1 Camp. 233; Baldey v. Parker, 2 B. & C. 37; 3 D. & R. 220; Proctor v. Jones, 2 C. & P. 532; Boulter v. Arnott, 1 Cr. & M. 333; Bill v. Bament, 9 M. & W. 36. (b) 1 Camp. 235. (c) 4 Exch. 390; 18 L. J. Exch. 374. (d) 2 C. & P. 532. accepted them, and afterwards filled sixteen other hogsheads, and requested the defendant to take them away, which he promised to do, it was held that the property in the sixteen hogsheads thereby passed to the defendant, and that his acceptance of the four was a part acceptance of the twenty. (a) So where the plaintiff and defendant went in one day to several places distant a few miles from each other, where they agreed for the purchase and sale of several lots of timber; and at the last a memorandum of the whole transaction was made and signed by the plaintiff, and part of the timber was accepted by the defendant, but he refused to take the rest; it was held that the. whole formed one joint contract, and that there had been a sufficient acceptance. (b) Again, where an order was given for common steel and cast steel, and the common steel was accepted, it was held that there had been a sufficient acceptance to take the contract out of the statute. (c) The above case appears to conflict with Thompson v. Maceroni, (d) where goods of considerable value were made to order, and remained in the possession of the vendor at the vendee's request, with the exception of a small part, which the vendee took away, and it was held that there had been no acceptance of the residue; but in Elliott v. Thomas, (e) Parke, B., pointed out that Thompson v. Maceroni turned entirely on the form of the action, (a) Rohde v. Thwaites, 9 D. & R. 293; and see Baldey v. Parker, 2 B. & C. 37; 3 D. & R. 220; Scott v. Eastern Counties Railway Co. 12 M. & W. 38. (b) Bigg v. Whirking, 14 C. B. 195. (c) Elliott v. Thomas, 3 M. (d) 3 B. & C. 1; 4 D. & R. 619. CHAP. IV. CHAP. IV. Secus if contract not entire, or if goods sent in excess of order. Sale by auction distinct con tract for each lot. which was for goods sold and delivered, on which the plaintiff could not succeed unless there was a delivery of the whole, or at least an actual acceptance and receipt of the whole, so as to be equivalent to a delivery. But if the contract is not entire, or if goods are sent in excess of the order, the acceptance of part will not be an acceptance of all. Thus, where the traveller of A and Co. in London, having called upon B in the country for orders, B gave an absolute order for a quantity of cream of tartar, and offered to take a quantity of lac dye at a certain price, and the traveller said the price was too low, but that he would write to his principals, and if B did not hear from them in one or two days, he might consider that his offer was accepted, and A and Co. never wrote to B, but sent all the goods, it was held that there was not one entire contract for both the articles, and therefore that the acceptance of one was not equivalent to the acceptance of the whole. (a) So where a purchaser ordered four dozen of wine, and the vendor sent him eight dozen, and the purchaser kept thirteen bottles and returned the rest, it was held that there was no part acceptance, but a new contract as to the wine kept, and the purchaser was only liable upon that. (b) Upon a sale by auction, a distinct contract arises for each lot, although the same person may have bought several successive lots. (c) CHAP. IV. made. Where an order is given for goods, some of which are ready made at the time of the contract, and the rest are Goods not to be manufactured according to order, and the goods. which are ready made are afterwards delivered and paid for, the acceptance of them is a part acceptance of the whole to satisfy the statute, as the contract is entire. Thus where certain lamps were ordered by the defendants, all of which were of a well-known and ordinary description, with the exception of a triangular lamp, which was very peculiar, and the ordinary lamps were delivered and paid for, but the triangular lamp was not finished for two years, and when delivered the defendants refused to receive or pay for it, it was held that there was but one contract, and that the acceptance of some of the goods was enough to take the case out of the statute. (a) Where a principal enters into a contract for the sale of goods, in which he describes himself as an agent, and the buyer accepts and pays the price of a portion of the goods, he cannot, after notice that the alleged agent was himself the real principal in the transaction, refuse to accept the residue of the goods; and the principal may sue in his own name for the non-acceptance of, and nonpayment for, the residue.(b) Goods sold by principal as agent. if contract. A contract for the sale of goods of the value of £10 or Mixed upwards, is not the less within the seventeenth section of the Statute of Frauds, because it also embraces something the bargain it may be uncertain whether the thing sold will be of the value of £10, according to the terms of the contract, yet if in the result it turn out that the value actually exceeds £10, the statute applies." Benj. on Sales, 2nd ed. 707, citing (a) Scott v. Eastern Counties (b) Rayner v. Grote, 15 M. & W. 359. CHAP. IV. Vendee must have an oppor ing whether goods correspond with order. to which the statute does not extend, as an exchange. (a) Where it was agreed by parol between the plaintiff and defendant that the plaintiff should sell the defendant a mare and foal, and should keep them until a certain day at his own expense, and that the plaintiff should also for a given time keep and feed a mare and foal belonging to the defendant, and that in consideration of all this the defendant should fetch away the plaintiff's mare and foal on the day named, and pay him £30, it was held that this, so far as it related to the sale of the plaintiff's mare and foal, was a contract within the seventeenth section of the statute, and void for want of writing. (b) There can be no acceptance and actual receipt of goods tunity of judg- unless the vendee has had an opportunity of judging whether the goods sent correspond with the order.(c) Therefore, where the defendant agreed to purchase of the plaintiff bones of a particular kind, to be separated from a heap of various bones, and gave the plaintiff a note addressed to a wharfinger to receive and ship the bones; and the plaintiff accordingly sent to the wharf some bones, which on inspection the defendant refused to accept, on the ground that they were not what he bargained for; it was held that although there was a receipt, there was no acceptance to satisfy the statute, as the purchaser of goods to be separated from the bulk could not be said to have accepted them till they were separated, and Martin, B., said: "In my opinion, an acceptance, to satisfy the statute, must be something more than a mere receipt, it means some act done after the (a) Bach v. Owen, 5 T. R. 409. (b) Harman v. Reeve, 18 C. B. 586; 25 L. J. C. P. 257; see also Bing. on Sales, 2nd ed. 108. (c) Smith v. Surman, 9 B. & C. 561; Norman v. Phillips, 14 M. & W. 277. |