(b) Percival v. Blake, 2 C. & P. 514;

Kent v. Huskinson, 3 B & P. 233; Phillips v. Bistolli, 2 B. & C. 511; Bacon v. Eccles, 43 Wis. 227.

1 Thus the cutting down and the sale by a purchaser of the tops and stumps of a portion of certain growing trees is an acceptance and actual receipt of the whole sufficient to satisfy the statute. Marshall v. Green, 1 C. P. D. 35. If a seller of merchandise, in order to retain his lien for the price, refuses to permit the purchaser to take possession or control of it, he thereby prevents an acceptance and receipt of it by the purchaser, within the statute. Safford v. McDonough, 120 Mass. 290. To constitute an acceptance where goods are sold by sample, it is not enough to show that the goods came into the possession of the buyer, and that they corresponded with the sample.' Remick v. Sandford, 120 Mass. 309. An agreement to take all the leather of a certain thickness forming part of a large pile, from which it was afterwards to be selected by the seller, the receipt of part of the leather by a common carrier not expressly authorised by the buyer to accept it, and the acceptance by the buyer of that part, but with no intention to perform the whole contract, are not a sufficient acceptance to take the sale out of the statute. Atherton v. Newhall, 123 Mass 141. In Knight v. Mann, 118 Mass. 143; 120 Mass. 219, it appeared that the plaintiff had a large number of skins for sale in bales, and the defendant, after examining some, orally agreed to buy a certain quantity, which he was to send for. The plaintiff accordingly at once counted out, weighed, and set apart the quantity so agreed upon, selected the " trials," so called in the trade, and exposed them to the air to be weighed before and after such exposure, to note the shrinkage. The defendant subsequently called and asked if the skins were ready, and was told that they were, " all but weighing the trials," and the defendant said he would send for them immediately. The trials were then weighed, the net weight of the whole ascertained by deducting the percentage of shrinkage, and they were placed in a doorway of the plaintiff's store for the defendant to remove. The defendant returned on the same day, asked for the bill, which was given him, and was told that the skins were ready for delivery, and were lying in the doorway. He then left, but did not send for the skins, although he. said he would send for them. The defendant never saw the skins after he bargained for them. Held, that there was not an acceptance and receipt within the statute. - K.

(c) Per Parke, J., in Smith v. Surman, 9 B. & C. 561, 577; Norman v. Phillips, 14 M. & W. 277; Howe r. Palmer, 3 B. & Ald. 321; Hanson v. Armitage, 5 B. & Ald. 557; Acebal v. Levy, 10 Bing. 376; Cunliffe v. Harrison, 6 Exch. 903; Curtis v. Pugh, 10 Q. B. 11l; Outwater v. Dodge, 6 Wend. 397.

{d) Morton v. Tibbett, 15 Q. B. 42S. This was an action brought to recover the price of fifty quarters of wheat. It appeared that on the 25th of August, 1848, the plaintiff and defendant being at March market, the plaintiff sold the wheat to the defendant by sample. The defendant said that he would send one Edgley, a general carrier and lighterman, on the following morning, to receive the residue of the wheat in a lighter, for the purpose of conveying it by water, from March, where it then was, to Wisbeach; and the defendant himself took the sample away with him. On the 26th August, Edgley received the wheat accordingly.

On the same day the defendant sold the wheat, at a profit, by the same sample, to one Hampson, at Wisbeach market. The wheat arrived at Wisbeach, in due course, on the evening of Monday, the 28th August, and was tendered by Edgley to Hampson on the following morning, when he refused to take it, on the ground that it did not correspond with the sample. Up to this time the defendant had not seen the wheat; nor had any one examined it on his behalf. Notice of Hampson's repudiation of his contract was given to the defendant; and the defendant, on Wednesday, the 30th August, sent a letter to the plaintiff repudiating his contract with him on the same ground. There being no memorandum in writing of the contract, it was objected, for the defendant, that there was no evidence of acceptance and receipt, to satisfy the requirements of the statute of frauds. Pollock, C. B., before whom the case was tried, overruled the objection, and a verdict was found for ever, the seeming conflict comes from confounding two questions which are distinct If the buyer accepts and actually the plaintiff. Afterwards, the case being brought before the Queen's Bench, on a motion to enter a nonsuit, pursuant to leave reserved at the trial, Lord Campbell, in delivering the judgment of the court, said: "In this case the question submitted to us is, whether there was any evidence on which the jury could be justified in finding that the buyer accepted the goods, and actually received the same so as to render him liable as buyer, although he did not give anything in earnest to bind the bargain, or in part payment, and there was no note or memorandum in writing, of the bargain. It would be very difficult to reconcile the cases on this subject; and the difference between them may be accounted for by the exact words of the 17th section of the statute of frauds not having been always had in recollection. Judges, as well as counsel, have .supposed that, to dispense with a written memorandum of the bargain, there must first have been a receipt of the goods by the buyer, and, after that, an actual acceptance of the same. Hence, perhaps, has arisen the notion, that there must nave been such an acceptance, as would preclude the buyer from questioning the quantity or quality of the goods, or in any way disputing that the contract has been fully performed by the vendor. But the words of the act of parliament are [here his lordship stated the whole of the 17th section]. It is remarkable that, notwithstanding the importance of having a written memorandum of the bargain, the legislature appears to have been willing that this might be dispensed with, when by mutual consent there has been part performance. Hence, the payment of any sum in earnest, to bind the bargain, or in part payment, is sufficient. This act on the part of the buyer, if acceded to on the part of the vendor, is sufficient. The same effect is given to the corresponding act by the vendor, of delivering part of the goods sold to the buyer, if the buyer shall accept such part, and actually receive the same. As part payment, however minute the same may be, is sufficient, so part delivery, however minute the portion may be, is sufficient. This shows conclusively that the condition imposed was not the complete fulfilment of the contract, to the satisfaction of the buyer, in truth, the effect of fulfilling the condition is merely to waive written evidence of the contract, and to allow the contract to be established by parol, as before the statute of frauds passed. The question may then arise, whether it has been performed, either on the one side or the other. 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. As the act of parliament expressly makes the acceptance and actual receipt of any part of the goods sold sufficient, it must be open to the buyer, at all events, to object 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. 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 was not according to the contract, there was evidence to justify the jury in finding that the defendant accepted and received it." His lordship then proceeded to examine most of the cases cited in the preceding note, and arrived at the conclusion that they were not sufficiently strong to control the action of the court: and the rule for a nonsuit was accordingly discharged. Since the decision of this case, the case of Hunt v. Hecht, 8 Exch. 814, 20 Eng. L. & Eq. 524, has been decided in the Court of Exchequer. That was an action for goods sold and delivered. On the trial it appeared, that one of the defendants, who were partners, called on the plaintiff, a bone-merchant, for the purpose of buying bones. He there saw a heap containing a quantity of the kind he desired to buy, but intermixed with others which were unfit for manufacturing purposes. He ultimately agreed with the plaintiff to buy the heap, if the objectionable bones we're taken out. It was arranged between them that the plaintiff should deliver the bones at Brewer's Quay, in sacks, marked purposes, the agent of the seller, who, retains his lien, or quasi lien, by his right to stop the goods in transitu. (f) We * think this open to much doubt; and certainly, though it may be a delivery, it is. not yet an acceptance1 by the buyer. But if the buyer designates a person as his carrier (although this person's occupation may be that of a common carrier), and directs the seller to deliver the goods as the buyer's, to this person, then it might be held, that the delivery was made to the buyer through an agent, and an acceptance made by the buyer through an agent. (g) But whether a designation of the carrier, and an order to deliver, and a compliance on the part of the seller, be such as to have this effect, must depend upon the intentions and acts of the parties, and the circumstances of each case. (h)