CHAP. IV.

Purchaser cannot after acceptance withdraw unless fraud.

Vendor's consent to acceptance necessary.

inasmuch as the defendants under the contract had the option of rejecting the wine in the spring, and they had availed themselves of that option.

After the purchaser of goods has once accepted and received them, he cannot withdraw from his bargain except on the ground of fraud. (a)

In order to satisfy the statute there must be an acceptance and actual receipt of the goods, or part of them, with the consent of the vendor, and if before such acceptance the vendor rescinds the contract, the assignees of the buyer, in the case of his bankruptcy, cannot claim them, although they have been delivered to a carrier, consigned to the buyer.

In Smith v. Hudson, (b) the defendant, on the 3rd of November, 1863, entered into a verbal contract with W to sell him barley by sample. The bulk was taken on the 7th of November by the defendant to a railway station, and left there with a delivery note. It is the custom of the trade for the buyer to compare the sample with the bulk as delivered, and if the examination is not satisfactory to strike it, i.e. either refuse to accept it, or allow it to remain as the property of the vendor; and it was in the power of W to strike the corn if it had not proved according to sample. On the 9th of November W was adjudicated a bankrupt, and on the 11th the defendant gave notice to the station master not to deliver the corn to the bankrupt or his assignees, or any other person without his written consent. At the time of the notice the bankrupt had given no order or direction respecting the corn, nor had he examined it to see whether the bulk corresponded with the sample, nor had he given any

(a) Saunders v. Topp, 4 Exch. 390; 18 L. J. Ex. 374.

(b) 6 B. & S. 431; 34 L. J. Q. B. 145.

notice to the defendant that he accepted or declined it. On the 1st of December the assignees of W claimed the corn; on the 5th the railway company, on an indemnity from the defendant, delivered it to him. It was held that there was no acceptance sufficient to satisfy the statute.(a)

If at the time when the purchaser of goods takes to them as owner, the parol contract has been already disaffirmed by the vendor, there can be no acceptance. Thus, where it was verbally agreed between the owner of goods and a person who was in possession of them as his tenant, that the tenant might if he pleased purchase them at the termination of his tenancy, but that he was not to take them till the money was paid, and at the expiration of the tenancy the buyer tendered the price, but it was refused by the vendor, who denied the validity of the bargain, and after this the vendee proceeded to take away the goods, and the vendor prevented him and took possession of them; it was held that there was no evidence to go to the jury of acceptance and receipt. (b)

A carrier of goods, although named by the vendee, has no authority to accept the goods, he is only an agent for So also a wharfinger, or any the purpose of carrying. other person authorized to receive and keep goods for a vendee, has no authority of acceptance, and if the vendee refuses to take the goods, the person to whom they have been intrusted holds them as agent for the vendor.

Where the purchaser of goods ordered them to be forwarded to him in a particular manner, and desired a third person, who then had possession of them, to see

(a) And see Bolton v. Lancashire Railway Co. L. R. 1 C. P. 431.

(b) Taylor v. Wakefield, 6 E. & B. 765.

CHAP. IV.

Contract by vendor.

disaffirmed

A carrier of goods has no authority to

accept.

CHAP. IV.

Defeasible

contract taken

out of statute

them delivered, measured, and put up properly, and they were sent to another warehouse belonging to the vendor, when one of his clerks gave an invoice to the purchaser, who took it and requested a week longer to pay the money, and on the same day gave notice that he would not accept the goods, it was held that there had not been any acceptance. (a) So the delivery of goods, bought abroad, on board a ship chartered by the purchaser, is not a sufficient acceptance. (b)

So delivery at a railway station named by the purchaser, in pursuance of a parol order by him, is not evidence of acceptance.(c)

Where an agreement is made defeasible on certain conditions, these form part of the agreement, and accep

by acceptance. tance takes the whole agreement out of the statute.

Therefore, where the plaintiff entered into a parol agreement to sell the defendant a mare for £20, subject to the condition that, if it should prove to be in foal, defendant should, on receiving £12 from the plaintiff, return it on request, and the plaintiff delivered the mare and received £20; and on its proving to be in foal he tendered £12 to the defendant, and requested him to return the mare, which the defendant refused to do, it was held that the contract to return it on payment of £12 was not a dis

(a) Astey v. Emery, 4 M. &

Sel. 262.

(b) Acebal v. Levy, 10 Bing. 376; 4 M. & Sc. 217; and see Hanson v. Armitage, 5 B. & Ald. 557; Johnson v. Dodgson, 2 M. & W. 656; Bushel v. Wheeler, 15 Q. B. 445; Norman v. Phillips, 14 M. & W. 277; Meredith v. Meigh, 2 E. & B.

364; 22 L. J. Q. B. 401; overruling Hart v. Sattley, 3 Camp. 528; Hunt v. Hecht, 8 Exch. 814; Hart v. Bush, E. B. & E. 494; 27 L. J. Q. B. 271; Cusack v. Robinson, 1 B. & S. 299; 30 L. J. Q. B. 261.

(c) Smith v. Hudson, 6 B. & S. 431; 34 L. J. Q. B. 145.

tinct contract of sale, but one of the conditions of the original sale to the defendant, and that the delivery of the mare to the defendant took the whole agreement out of the statute, so as to enable the plaintiff to sue the defendant for the refusal to return it. (a)

CHAP. IV.

Where goods have been delivered by the vendor and Disputed terms though accepted by the vendee, that is evidence of the existence acceptance. of a contract between the parties. There may, however, be terms of the contract which may be disputed, and these are questions of fact to be determined by the jury. Thus, where the plaintiffs sold a piano to the defendant, and delivered it to the defendant, who kept it, but refused to pay for it, alleging that it was delivered upon an agreement that it should remain as security for the payment of certain outstanding bills which he had discounted for the plaintiff, it was held that there was a sufficient acceptance within the statute, and that parol evidence was admissible to show the terms of the bargain. (b)

between

The statute, it will be seen, requires that the goods Distinction shall be accepted and received, and it is important to re- "acceptance member that acceptance and receipt are distinct matters, and "receipt." for there may be a constructive acceptance of goods without receipt, and there may be an actual receipt of goods without acceptance. (c)

The test for determining whether there has been an actual receipt by the vendee, that has been laid down in

(a) Williams v. Burgess, 10 A. & E. 499; and see Collis v. Bothamley, 7 W. R. 87.

(b) Tomkinson v. Staight, 17 C. B. 697; 25 L. J. C. P. 85.

(c) See Castle v. Sworder, 6 H. & N. 833; Marvin v. Wallace, 6 E. & B. 726; 25 L. J. Q. B. 369; and Smith v. Hudson, 6 B. & S. 431; 34 L. J. Q. B. 145.

Test of accep

tance and re

ceipt whether

vendor's lien remains.

Goods in

possession

many cases, is to inquire whether the vendor has parted with the possession of the goods, and placed them under the control of the purchaser, so as to deprive himself of his right of lien, for so long as the vendor retains his right of lien there can be no receipt. In Baldey v. Parker, a Holroyd, J., said: "Upon a sale of specific goods for a specific price, by parting with the possession the seller parts with his lien. The statute contemplates such a parting with the possession; and, therefore, as long as the seller preserves his control over the goods so as to retain his lien, he prevents the vendee from accepting and receiving them as his own within the meaning of the statute.” (¿)

When goods are already in the possession of the vendee at the time of sale, it is a question of fact for the time of se. jury to consider whether he has so dealt with them since

of vendee st

the sale as to show that he considered himself to be the owner. Thus, where goods of the plaintiff were in the defendant's hands for the purpose of being sold by the defendant for the plaintiff, and the defendant told the plaintiff that he (defendant) would take them himself at a price then named, and the defendant sold them to a third party, and after that, in a written account current delivered to the plaintiff, debited himself with the

(a) 2 B. & C. 44; 3 D. & R. 220.

(b) And see Howe v. Palmer, 3 B. & Ald. 321; Tempest v. Fitzgerald, 3 B. & Ald. 680; Carter v. Toussaint, 5 B. & Ald. 858; Phillips v. Bistolli, 2 B. & C. 514; Hawes v. Watson, 2 B. & C. 542; Smith v. Surman, 9 B. &C. 577; Maberley v. Shep

pard, 10 Bing. 101; Bill v. Bament, 9 M. & W. 41; Acraman v. Morrice, 8 C. B. 449; Morton v. Tibbett, 15 Q. B. 428; 19 L. J. Q. B. 382; Holmes v. Hoskins, 9 Exch. 756; 23 L. T. 70; Castle v. Sworder, 6 H. & N. 833; 30 L. J. Ex. 310; Cusack v. Robinson, 1 B. & S. 308; 30 L. J. Q. B. 264.