Acceptance and Receipt within Statute of Frauds, s. 17. 473

named by the vendee, who was to take it to a market town, where the vendee resold it by the same sample which he had taken from the vendor himself, but never inspected the bulk, this was held to be evidence of acceptance and receipt; Morton v. Tibbett, Id. 428. Goods not specified in the original contract, but selected by the vendor, and shipped by him for delivery to an inland carrier named by the vendee, who was to convey them to the vendee's residence, were lost at sea; a bill of lading had been sent to the inland carrier;-held that this was not evidence of an acceptance and receipt by the vendee, though it would have been a sufficient delivery to him, if the contract had been binding; and that the mere silence of the vendee, on hearing that the goods were shipped, would not justify a verdict for the vendor; neither the selection by the vendor, nor the receipt by the carrier, being an acceptance of those particular goods by the vendee. Meredith v. Meigh, 2 E. & B. 364; 22 L. J., Q. B. 401 (overruling Hart v. Sattley, 3 Camp. 528); accord. Hart v. Bush, E. B. & E. 494; 27 Ľ. J., Q. B. 271; and Smith v. Hudson, 6 B. & S. 431; 34 L. J., Q. B. 145, cited ante, p. 471. In Meredith v. Meigh, supra, it was said, per curiam, that if the vendee had received the bill of lading, and dealt with it as owner of the property, this would have been evidence of an acceptance and receipt. And it has since been ruled, on the authority of that case, and of Morton v. Tibbett, supra, that keeping and dealing with a bill of lading is evidence of acceptance. Currie v. Anderson, 2 E. & E. 592; 29 L. J., Q. B. 87. Where the vendee receives the articles sold, but disputes the alleged terms of sale on the delivery, the sale is good, and the terms may be proved by oral evidence. Tomkinson v. Staight, 17 C. B. 697; 25 L. J., C. P. 85.

The circumstances in the following cases were held to constitute an acceptance and receipt within the statute. Where A. agreed to sell to B. 20 hogsheads of sugar then in bulk, and filled up and delivered 4, and afterwards filled up the remaining 16, and gave notice to the defendant, who said he would take them away as soon as he could, this was held to be an acceptance of the whole number of the hogsheads. Rohde v. Thwaites, 6 B. & C. 388. Where there was a written contract to deliver to defendant by A., as agent of another, and defendant accepted part after knowledge that A. was principal and not agent; held that he could not refuse to accept the residue, and might be sued by A. for non-acceptance. Rayner v. Grote, 15 M. & W. 359. The defendant bought a quantity of hay from the plaintiff, and sold it to another person, by whom it was taken away; it was held that the jury might presume an acceptance by the defendant. Chaplin v. Rogers, 1 East, 192. Where defendant selected and orally agreed to purchase certain goods of the plaintiff, and directed them to be sent to a particular wharf, where he was in the habit of warehousing his goods, that was held sufficient to constitute an acceptance; and the goods having been placed on the wharf under the control of the defendant, so as to put an end to any rights of the plaintiff as unpaid vendor,-that was held a sufficient actual receipt. Cusack v. Robinson, 1 B. & S. 299; 30 L. J., Q. B. 261. Where the defendants agreed to purchase of the plaintiff four specific stacks of cotton waste at so much per lb.; they sent their packer with sacks, and carts to fetch it; he packed the waste in 81 sacks; 21 were weighed, loaded, and taken to the defendant's premises; the other sacks were not weighed; on arrival of the 21 sacks, the defendants refused to accept any of the waste, on the ground that it was of inferior quality to that purchased; and it was held that there was evidence of an acceptance and receipt. Kershaw v. Ogden, 3 H. & C. 717; 34 L. J., Ex. 159.

Though the goods remain in the personal possession of the vendor, yet if it is agreed between the vendor and vendee that the possession shall thenceforth be kept not as vendor but as bailee for the purchaser, the right of lien

is gone, and then there is a sufficient receipt to satisfy the statute; per cur., S. C., citing Beaumont v. Brengeri and Marvin v. Wallis, infra. The defendant bought two horses from the plaintiff, a livery-stable keeper, and desired him to keep them at livery for him; it was held that the plaintiff, by assenting to this order, and changing the horses from the stables in which they had been kept to his livery-stables, had relinquished his lien, and that there was a constructive delivery of them to the defendant; Elmore v. Stone, 1 Taunt. 458; Beaumont v. Brengeri, 5 C. B. 301, accord. So where, on an oral sale of a horse by A. to B., B., without having had it in his possession, lent it to A. at his request for a few weeks, and B. afterwards refused to receive or pay for it; and the jury found that the contract of sale was completed before the loan of it to the vendor: held that there was an acceptance and actual receipt within the statute. Marvin v. Wallis, 6 E. & B. 726; 25 L. J., Q. B. 369. So, where the defendant bought some spirits from the plaintiffs, who sent an invoice of certain specified casks, terms six months' credit, and to lie in plaintiffs' warehouse till wanted, free six months; the plaintiffs kept a general bonded warehouse, and transferred the particular casks to the defendant's name in their warehouse book, as sold to him, after which the plaintiffs could not take them out; at the end of the six months the defendant asked the plaintiffs to take them back, or sell them for him; held there was evidence of a receipt and acceptance, as the character of the plaintiffs had changed from vendors to warehousemen or agents of the defendant. Castle v. Sworder, 6 H. & N 828; 30 L. J., Ex. 310; Ex. Ch., reversing S. C., 29 L. J., Ex. 235. See also Angel v. Ritch, 4 W. N. 241, C. P. M. T. 1869. Wool, bought by defendant, was removed to the warehouse of a third person, M., by defendant's direction, and weighed and packed by him; the course of dealing was, that it should not be taken out of M.'s warehouse till payment; this nevertheless was held a delivery and acceptance, as the vendor had parted with possession, and had no lien, properly so called. Dodsley v. Varley, 12 Ad. & E. 632. Where the goods sold were in the defendant's possession at the time of the sale, a dealing with them by the defendant, and an account rendered to the plaintiff's by defendant, debiting himself with the price, are evidence of an acceptance by defendant; Edan v. Dudfield, 1 Q. B. 302. Where the act done by the vendee is an ambiguous act, which may or may not be done as an act of ownership, it is evidence on which it ought to be left to the jury to say, whether or not, there had been an acceptance; Parker v. Wallis, 5 E. & B. 21. A. bargained for a horse then in a stable, and soon afterwards brought in a third person and stated to him that he had bought the horse, and offered to sell it to him for a profit of 5l.; it was held that it ought to be left to the jury to say, whether this was or was not a delivery and acceptance. Blenkinsop v. Clayton, 7 Taunt. 597; and see Phillips v. Bistolli, 2′′B. & C. 511. A wrongful taking by the vendee after a tender and refusal of the money is not an acceptance to bind the vendor. Taylor v. Wakefield, 6 E. & B. 765; see Smith v. Hudson, 6 B. & S. 431; 34 L. J., Q. B. 145, cited ante, p. 471.

There need not be an actual delivery, but there may be something tantamount; such as the delivery to the buyer of a key of the warehouse in which the goods are lodged, or the delivery of other indicia of property; per Ld. Kenyon, C.J., Chaplin v. Rogers, 1 East, 192, 195; and this is evidence of acceptance as well as of delivery; Elmore v. Stone, 1 Taunt. 460. So, where the purchaser cut down and sold some of a number of trees he had bought, this was held to be an acceptance and receipt. Marshall v. Green, 1 C. P. D. 35. A written order given by the seller of goods to the buyer, directing the person in whose care the goods are to deliver them to the buyer, is a sufficient receipt within the statute, provided the person to whom

Earnest, or Part Payment.-Sufficiency of Note.

475

it is directed accept the order for delivery, and assent to hold the goods as the agent of the buyer. Searle v. Keeves, 2 Esp. 598; Bentall v. Burn, 3 B. & C. 426; Salter v. Woollams, 2 M. & Gr. 650.

When a joint order is given for several classes of goods, the acceptance of one class is a part acceptance of the whole, under this section; Elliott v. Thomas, 3 M. & W. 170; and Thompson v. Maceroni, 3 B. & C. 1, contra, is there explained. And part acceptance is sufficient, although the rest are not even made; Scott v. Eastern Counties Ry. Co., 12 M. & W. 33 ; for Ld. Tenterden's act, we have seen, is to be read as part of the Stat. of Frauds, and acceptance of part, and part payment, apply to contracts for goods to be made. But the contract for several things must be a joint one. Thus, if A. give to B. an absolute order for one, and a conditional order for another article, and B. sends both, A.'s acceptance of the former is not an acceptance of the latter. Price v. Lea, 1 B. & C. 156. Where a buyer selected separate lots of timber, at different and distant places, and various prices, shown to him by the same seller on one day, and afterwards included in one unsigned note, acceptance of one lot dispenses with a signed note. Bigg v. Whisking, 14 C. B. 195. The delivery of a sample, if considered to be part of the thing sold, is a sufficient acceptance; Hinde v. Whitehouse, 7 East, 588; but otherwise where it is a sample merely, and forms no part of the bulk. Talver v. West, Holt, N. P. 178; Cooper v. Elston, 7 T. R. 14.

Earnest or part payment.] If there be no note or memorandum in writing and no acceptance or receipt of the goods, then, to satisfy the statute, the buyer must give something in earnest to bind the bargain, or in part payment. Earnest is given by the buyer, and not by the seller, and the part delivery of goods is not (as Blackstone assumes, in the passage cited ante, pp. 466, 467) by the way of earnest. In cases of sale at common law, earnest has an effect different from that of the arre of the civil law, by binding the bargain, instead of merely affording additional proof of it. It is either money or other thing given, to bind the bargain, and to show that it is concluded, and no longer remains in mere proposal or in fieri. If given in money, it presumably forms part of the price, like a deposit at an auction, Pordage v. Cole, 1 Wms. Saund. 319. If it be some other article, it is in the nature of a pledge; Pothier, Cont. de Vente, p. 6, c. 1, art. 3, s. 2. Acceptance of earnest changes the property; Langfort v. Tiler, 1 Salk. 113; Hinde v. Whitehouse, 7 East, 558, 571. Customary forms of concluding bargains, as where the purchaser draws the edge of a shilling across the hand of the vendor and returns the money into his own pocket, are not equivalent to earnest or part payment, within the statute. Blenkinsop v. Clayton, 7 Taunt. 597. A bargain, that the vendor shall take, in part payment, a debt due from him to the vendee, is not in itself a sufficient part payment to dispense with a writing; no money having actually passed, nor receipt for the debt given by the vendee; for this would in effect let in proof of the contract itself in order to evade the statute. Walker v. Nussey, 16 M. & W. 302.

What note is sufficient within the Stat. of Frauds, s. 17.] The word bargain used in sect. 17 (like the word "agreement" in sect. 4, ante, p. 468) means the terms upon which the parties contract. Kenworthy v. Schofield, 2 B.& C. 947. The note in writing must contain all the terms of the agreement, or be connected with some other document which does. S. C. Several documents, if sufficiently connected, will constitute a good memorandum within the statute. Jackson v. Lowe, 1 Bing. 9; Saunderson v. Jackson, 2 B. & P. 238; Allen v. Bennet, 3 Taunt. 169; Warner v. Willington, 3 Drew, 523; 25 L. J., Ch. 662. A promise in writing signed, to pay any one unnamed who shall furnish goods to the writer or a third person making default, will be

come a binding contract with any one, whosoever he may be, who shall accept the promise in writing and furnish the goods. Williams v. Byrnes, 1 Moo. P. C., N. S. 154, 198. It must contain the names of both the contracting parties or their agents; Champion v. Plummer, 1 N. R. 252; Graham v. Musson, 7 Scott, 769; 5 N. C. 603; Williams v. Byrnes, supra ; as buyer and seller, Vandenbergh v. Spooner, L. R., 1 Ex. 316. In this last case the memorandum was as follows: "S. (the defendant) agrees to buy the whole of the lots of marble purchased by V. (the plaintiff) now lying at L. C., at 1s. a foot. (Signed) S.;" it was held that it did not satisfy the statute, because V. did not appear to be the seller. But in Newell v. Radford, L. R., 3 C. P. 52, the following memorandum was held sufficient: "N. (the plaintiff), 32 sacks culasses at 39s. ; 280 lbs. to wait orders. J. W.;" it was proved orally that J.W. was the defendant's agent, that the defendant was a flour dealer, and the plaintiff a baker, and the court drew inferences from the surrounding circumstances to explain the ambiguity in the memorandum.

Where there is an insufficient memorandum, such as an unsigned order for goods, a subsequent letter signed by the defendant, referring to the order, is sufficient; Saunderson v. Jackson, 2 B. & P. 238. Buxton v. Rust, L. R., 7 Ex. 1, 279, Ex. Ch. ; but the plaintiff cannot avail himself of a subsequent letter from the defendant, in which, though he recognizes the order, he disaffirms or adds to the terms of the memorandum. Cooper v. Smith, 15 East, 103. Vide ante, p. 288. A letter, however, referring to all the essential terms of the contract, but refusing to carry it out, is sufficient. Bailey v. Sweeting, 9 C. B., N. S. 843; 30 L. J., C. P. 150; Buxton v. Rust, supra; Wilkinson v. Evans, L. R., 1 C. P. 407. So, a memorandum, written and signed by the defendant on the back of an invoice of those goods sold to him by the plaintiff'; "The cheese came to-day, but I did not take them in, for they were very badly crushed. So the candles and cheese is returned," was held sufficiently to refer to the contents of the invoice, and the two together were a sufficient memorandum to satisfy the statute. S. C. The letter referring to the terms of the contract need not be to the other party to the sale. Thus, when the defendant's agent bought for him a mare of the plaintiff, and the agent wrote to the defendant telling him the purchase he had made of the plaintiff (naming him), and the price, and the defendant wrote back saying he would send the agent a cheque for the mare "which you have purchased for me," these letters were held a sufficient memorandum. Gibson v. Holland, L. R., 1 C. P. 1. See further as to the requisites of a sufficient note, ante, pp. 287, et seq.

The omission of the particular mode, or time of payment, or even of the price itself, does not necessarily invalidate the contract. Valpy v. Gibson, 4 C. B. 837. Where the price is omitted, and it does not appear upon the evidence that any specific price was agreed upon, a reasonable price must be presumed, and the contract should be so stated. Hoadley v. M'Lain, 10 Bing. 482; but, where the memorandum is silent as to price, and it appears by the evidence that a specific price was agreed upon, the written memorandum is imperfect, and cannot be given in evidence. Elmore v. Kingscote, 5 B. & C. 583; Goodman v. Griffiths, 1 H. & N. 574 ; 26 L. J., Ex. 145. A distinction was indeed suggested by the court in Acebal v. Levy, 10 Bing. 382, that where the contract is silent to the price, but has been executed, a reasonable price will be inferred; though it was thought questionable whether it is so when the contract is executory only, and the goods are still in the possession or power of the seller. But the case of Hoadley v. M'Lain, supra, which was for not accepting a carriage made to order, does not sanction this distinction, nor was any made in Valpy v. Gibson, supra, where Hoadley v. M'Lain, supra, was recognized. This inconvenience of the above rule is obvious. If a contract omitting the price has the legal effect of a contract for a reasonable price, then oral evidence of

Sufficiency of Note within Statute of Frauds, s. 17. 477

a fixed price ought to be excluded as being inconsistent with the written contract. (See cases, ante, pp. 15, et seq.) Yet, according to the above ruling, the evidence is to be admitted; and that for the purpose, not of supporting, but of destroying the efficacy of the writing, and defeating the demand by proof of a fact which, if true, ought to entitle the opposite party to recover.

An agreement to sell on "moderate terms" is enough. Aschcroft v. Morrin, 4 M. & Gr. 450. Where the price is ambiguous, as where hops are sold 66 at 100s.," this may be explained orally to mean per cwt. Spicer v. Cooper, 1 Q. B. 424, see ante, pp. 21, et seq. A buyer wrote his address in the seller's order book, which had the seller's name on the fly leaf, and a description and the price of the article: held a sufficient note of the buyer, though it did not specify an alteration in it to be made by the seller. Sarl v. Bourdillon, 1 Ć. B., N. S. 188; 26 L. J., C. P. 78. See Goodman v. Griffiths, and Elmore v. Kingscote, ante, p. 476.

The written memorandum must be made before action brought. Bill v. Bament, 9 M. & W. 36. Where a written order was given by defendant for goods of the price of 10l. and upwards, which defendant accepted with the accompanying invoice, and neither order nor invoice mentioned the time of payment, defendant was allowed to prove a previous conversation between plaintiff and defendant showing that the sale was to be on credit. Lockett

v. Nicklin, 2 Exch. 93. In this case the acceptance was sufficient within the statute, and no written memorandum being necessary, the oral evidence was admitted as not inconsistent with the writing, and forming with it the complete contract; vide ante, p. 17.

The terms of the written contract cannot be orally varied, vide ante, p. 28; Plevins v. Downing, 1 C. P. D. 220. But, forbearance on the part of the plaintiff is not a variation. Ogle v. Vane, El., L. R., 3 Q. B. 272, Ex. Ch. ; Hickman v. Haynes, L. R., 10 C. P. 598. Where the buyer, after an oral contract, receives without objection, an invoice or sold note, signed by the seller, differing from the contract, he cannot, in a case within the statute, set up the original terms to contradict the sold note. Harnor v. Groves, 15 C. B. 667; 24 L. J., C. P. 53.

To be made and signed by the parties to be charged.] It is not necessary that the note or memorandum should be signed by both parties to the contract. It is sufficient if it be signed by the party to be charged. Laythoarp v. Bryant, 2 N. C. 735. A proposal in writing signed by the party to be charged and verbally accepted by the person to whom it is made is sufficient. Reuss v. Picksley, L. K., 1 Ex. 342, Ex. Ch. ; Buxton v. Rust, L. R., 7 Ex. 279, Ex. Ch. ; see Watts v. Ainsworth, 1 H. & C. 83; 31 L. J., Ex. 448. And it makes no difference that there is no remedy against the person who does sign. Allen v. Bennet, 3 Taunt. 169. It is immaterial where the signature is placed on the document. A person writing at the head of a note, I, A. B. agree, or A. B. agrees, is sufficient, although the document is not signed at the bottom. Knight v. Crockford, 1 Esp. 190; Saunderson v. Jackson, 2 B. & P. 238; Schnieder v. Norris, 2 M. & S. 286; Durrell v. Evans, post, p. 478. But, the signature must be so introduced as to govern or authenticate every material part of the instrument. Hubert v. Turner, 4 Scott, N. R. 486; Caton v. Caton, L. R., 2 H. L. 127, decided on sect. 4. The question, however, is always open to the jury, whether the party, not having regularly signed it at the foot, meant to be bound by it as it stood, or whether it was left so unsigned because he refused to complete it; but, where it is ascertained that he meant to be bound by it as a complete contract, the statute is satisfied, there being a note in writing showing the terms of the contract, and recognized by him; per Ld. Abinger, in Johnson v. Dodgson, 2 M.