(k) See ante, vol. i. pp. * 526, • 527.

(l) See ante, vol. i. pp. * 527, delivery, and cannot reclaim the goods, the buyer has his option to keep the goods and pay for them, or return them and not pay. The statute in fact postpones the completion of an oral contract of sale. At common law, it is finished when one makes the offer of sale and the other accepts. By the statute, nothing is done by this offer and acceptance; another step must be taken: the goods themselves must be offered and accepted; and then only is the sale completed. It should seem, perhaps, that the same reason would give the seller, after delivery of the goods, and before acceptance of them, the same right to withdraw his goods, that he has to withdraw his offer before an acceptance of it; but we are not aware of any authority to this effect

An important distinction is taken between an agreement to manufacture goods for another, which is not within the statute, (ll) and an agreement to sell existing goods, which is.

If the sale be complete, and the bargain is for immediate delivery, and the seller asks the buyer to lend him the chattel for a time, to which the buyer assents, and therefore does not at once take it away, but permits the seller (the plaintiff) to keep * it, this has been recently held in England to be an acceptance under the statute. (m) In regard to what constitutes a delivery under the statute, and what constitutes an acceptance, there have been many decisions which it is difficult to reconcile. But the question is often one of fact rather than of law. Indeed, it is always a question of fact for the jury, whether the goods were delivered and accepted; but it is a question on which they will be directed by the court; and thus the question becomes a mixed one, of fact and law.

It may be said, in general, that a delivery must be a transfer of possession and control, made by the seller, with the purpose and effect of putting the goods out of his hands, (n)l This is a * sufficient delivery, whatever be its form; and upon a

(ll) O'Neil v. New York Mining Co. 3 Nev. 141; Parsons v. Loucks, 4 Rod. 216; Robertson v. Vaughan, 5 Sandford, 1; Mead v. Chase, 33 Barb. 202. See post, p.* 54.

(m) Marvin v. Wallis, 6 Ellis & B. 726. See also as to acceptance, Taylor v Wakefield, id. 765.

(n) Phillips v. Bistolli, 2 B. & C. 511; Dole v. Stimpson, 21 Pick. 384; Tempest v. Fitzgerald, 3 B. & Ald. 680; Parker r. Wallis, 5 Ellis & B. 21; Holmes v. Hos-kins, 9 Exch. 753. In the earlier cases, alight acts were considered as sufficiently evidencing the actual receipt of the properly by the purchaser. Chaplin v. Rogers, 1 East, 192; Hodgson v. Le Bret, 1 Camp. 233; Anderson v. Scott, 1 Camp. 235, n.; Elmore v. Stone, 1 Taunt. 458; Blenk-insop v. Clayton, 7 Taunt. 597; Vincent sale of personal property, any acts of the parties indicative of the exercise * of ownership by the vendee, may be subv. Germond, 11 Johns. 283. But the later cases are much more strict. See Howe v. Palmer, 3 B. & Ald. 321; Tempest v Fitzgerald, id. 680; Maberley v. Sheppard, 10 Bing. 99; Carter v. Toussaint, 5 B. & Ald. 855; Balder v. Parker, 2 B. & C. 37; Holmes v. Hoskins, 9 Exch. 753, 28 Eng. L. & Eq. 564; Cunningham v. Ashbrook, 20 Mo. 553. " To constitute delivery" in the language of Parke, B., in Bill v Bament, 9 M. & W. 41, "the possession most have been parted with by the owner, so as to deprive him of the right of lien." But see Dodsley v. Varley, 12 A. & E. 632. The question, what constitutes a sufficient delivery to satisfy the statute, was much discussed in Kew York, in the recent case of Shindler v. Houston, 1 Denio,48, 1 Comst. 261. In that case the plaintiff and defendant bargained respecting the sale by the former to the latter of a quantity of Iumber, piled apart from other lumber, on a dock, and in the view of the parties at the time of the bargain, and which had been before that time measured and inspected. The defendant offered a certain price per foot, which being satisfactory to the plaintiff, he said, "The Iumber is yours." The defendant then told the plaintiff to get the inspector's bill of the lumber, and take it to one House, who was the defendant's agent, and who, he said, would pay the amount. This was soon after done, but payment was refused. The price being over fifty dollars, and the statute of frauds being relied on, it was held, by the Supreme Court, in an action for the price of the lumber, upon a declaration for lumber sold and delivered, that the court below was right in refusing to charge the jury that the property did not pass at the time of the bargain; and that the facts were properly submitted to the jury, with instructions that they might find an absolute delivery and acceptance of the lumber at the time of the bargain, and that the payment was postponed, and credit given therefor until the inspector's bill should be presented to House. But upon appeal to the Court of Appeals, the judgment of the Supreme Court was reversed. And Wright, J., in delivering his opinion in the latter court, said: "It is to be regretted that the plain meaning of the statute should ever nave been departed from, and that anything short of an actual delivery and acceptance should have been regarded as satisfying its requirements, when the memorandum was omitted; but another rule of interpretation, which admits of a constructive or symbolical delivery, has become too firmly established now to be shaken. The uniform doctrine of the cases, however, has been, that in order to satisfy 'the statute there must be something more than mere words - that the act of accepting and receiving required to dispense with a note in writing, implies more than a simple act of the mind, unless the decision in Elmore v. Stone, 1 Taunt. 458, is an exception. This case, however, will be found upon examination to be in accordance with other cases, although the acts and circumstances relied on to show a delivery and acceptance were extremely slight and equivocal; and hence the case was doubted in Howe v. Palmer, 3 B. & Ald. 324, and Proctor v. Jones, 2 C. & P. 534, and has been virtually overruled by subsequent decisions. Far as the doctrine of constructive delivery has been sometime carried, I have been* unable to find any case that conies up to dispensing with all acts of parties, and rests wholly upon the memory of witnesses as to the precise form of words to show a delivery and receipt of the goods. The learned author of the Commentaries on American Law, cites from the Pandects the doctrine, that the consent of the party upon the spot is a sufficient possession of a column of granite, which, by its weight and magnitude, was not susceptible of any other delivery. But so far as this citation may be in opposition to the general current of decisions, in the common-law courts of England and of this country, it is sufficient perhaps to observe, that the Roman law has nothing in it analogous to our statute of frauds. In Elmore v. Stone, expense was incurred by direction of the buyer, and the vendor, at his suggestion, removed the horses out of the sale stable into another, and kept them at livery for him. In Chaplin v. Rogers, 1 East, 192, to which we were referred on the argument, the buyer sold part of the hay, which the purchaser had taken away; thus dealing with it as if it were in his actual possession. In the case of Jewitt v. Warren, 12 Mass. 300, to which we were also referred, no question of delivery under the statute of frauds arose. The sale was not an absolute one, but a pledge of the property. The cases of Elmore v. Stone, and Chaplin v. Rogers, are the most barren of acts indicating delivery; but these are not authority for the doctrine that words, mitted to the jury as evidence of receipt and acceptance, to take the case out of the statute, (o) Hence delivery may be constructive; as by the delivery of the key of a warehouse, (p) or making an entry in the books of the warehouse-keeper, (q) or delivery, with indorsement, of a bill of lading,(r) or even of a receipt (s) But a mere delivery by the seller and acceptance by the buyer of the seller's order on a bailee, does not seem to satisfy the statute, without some act of possession and acceptance of the property by the buyer, or the assent of the bailee to hold it for the buyer, (t)1 Even less than this may be a delivery and acceptunaccompanied by acts of the parties, are sufficient to satisfy the statute. Indeed, if any case could be shown which proceeds to that extent, and this court should be inclined to follow it, for all beneficial purposes, the law might as well be stricken from our statute-book; for it was this species of evidence, so vague and unsatisfactory, and so fruitful of frauds and perjuries, that the legislature aimed to repudiate. So far as I have been able to look into the numerous cases that have arisen under the statute, the controlling principle to be deduced from them is, that when the memorandum is dispensed with, the statute is not satisfied with anything but unequivocal acts of the parties; not mere words, that are liable to be misunderstood, and misconstrued, and dwell only in the imperfect memory of witnesses. The question has been, not whether the words used were sufficiently strong to express the intent of the parties, but whether the acts connected with them, both of seller and buyer, were equivocal or unequivocal. The best considered cases hold, that there must be a vesting of the possession of the goods in the vendee, as absolute owner, discharged of all lien for the price on the part of the vendor, and an ultimate acceptance and receiving of the property by the vendee, so unequivocal that he shall have precluded Himself from taking any objection to the quantum or quality of the goods sold. But will proof of words alone show a delivery and acceptance from which consequences like these may be reasonably interred ? Especially, if those words relate not to the question of delivery and acceptance, but to the contract itself ? A and B verbally contract for the sale of chattels, for ready money; and without the payment of any part thereof, A says,' I deliver the prop, erty to you, or 'It is yours,' but there are no "acts showing a change of possession, or from which the facts may be inferred. B refuses payment. Is the right of the vendor, to retain possession as hen for the price, gone ? Or, in the event of a subsequent discovery of a defect in the quan* tum or quality of the goods, has B, in the absence of all acts on his part showing an ultimate acceptance of the possession, concluded himself from taking any objection? I think not. As Justice Cowen remarks, in the case of Archer v. Zeh, 5 Hill, 205,' One object of the statute was to prevent perjury. The method taken was to have something done; not to rest everything on mere oral agreement,' The acts of the parties must be of such a character as unequivocally to place the property within the power, and under the exclusive dominion, of the buyer. This is the doctrine of those cases that have carried the principle of constructive delivery to the utmost limit." And see Atwell v. May hew, 6 Md. 10; Denny v. Williams, 5 Allen, 1; Eastern R. R. Co. v. Benedict, 10 Gray, 212; Finney v. Apgar, 2 Vroom, 266.