It is clearly settled that acceptance, as well as receipt of the goods, may be subsequent to the common-law bargain to which the statute is applicable, whether a contract to sell or a sale.18 A more difficult question relates to the rule covering the relative time of acceptance and receipt. That receipt may precede acceptance there seems no doubt. Thus, where goods are sent in accordance with the contract and the buyer takes them into his possession, this will constitute receipt, and when he thereafter examines them and assents to their quality, this will constitute acceptance.19 It is equally true that acceptance may precede the receipt. This was finally decided in England by the case of Cusack v. Robinson,20 and the decision
16Nicholson v. Bower, 1 E. & E. 172; Jamison v. Simon, 68 Col. 17, 8 Pac. 602; Hewes v. Jordan, 39 Md. 472; Remick v. Sandfurd, 120 Mass. 309; Kemensky v. Chapin, 193 Mass. 600, 79 N. E. 781; Mechanical Boiler Co. v. Kellner, 62 N. J. L. 544, 43 Atl. 699; Stone v. Browning, 51 N. Y. 211, 68 N. Y. 698; Gibbs v. Benjamin, 45 Vt. 124; Baton v. Eccles, 43 Wis. 227. Except in Iowa and perhaps Indiana. See supra, Sec. 640, n. 1.
17 Kemensky v. Chapin, 193 Mass. 500, 79 N. E. 781.
18 Buckingham v. Osborne, 44 Com.. 133; Coffin c. Bradbury, 3 Ida. 770, 36 Pac. 715, 95 Am. St. Rep. 37; Davis v. Moore, 13 Me. 424; Bush v. Holmes, 53 Me. 417; Marsh v. Hyde, 3 Gray, 331; McCarthy v. Nash, 14 Minn. 127; Ortloff v. Klitike, 43 Minn. 154, 44 N. W. 1085; Field v, Runk, 2 Zab. 525; McKnight v. Dun-lop, 5 N. Y. 537, 55 Am. Dec. 370; Jackson v. Tupper, 101 N. Y. 615, 5 N. E. 65; Danforth v. Walker, 40 Vt. 257; Cotterill v. Stevens, 10 Wis. 422.
19Knight v. Mann, 118 Mass. 143. See also cases cited supra, Sec. 542, note.
20 1 B. 4 S. 299. This case overruled certain expressions in Saunders v. Topp, 4 Ex. 390, to the effect that it is necessary that the acceptance should be subsequent to or contemporaneous with the receipt; but contrary expressions are to be found In Morton v. Tibbett, 15 Q. B. 428. In Cusack v. Robinson, Blackburn, J., quoted these and summarised the matter as follows: "The intention of the Legislature seems to have been that the contract should not be good unless partially executed; and it is partially executed if, after the vendee has finally agreed on the specific articles which he is to take under the contract, the vendor by the vendee's directions parts with the possession, and puts them under the control of the vendee, so as to put a complete end to all the rights of the unpaid vendor as such. We think, therefore, that there is nothing in the nature of the enactment to imply an intention, has been followed in the United States,21 though expressions may be found which seem, literally interpreted, to indicate a contrary understanding.22 The Uniform Sales Act, therefore, follows the existing law in declaring that acceptance may be either before or after delivery of the goods.23 Indeed, if the goods in regard to which the parties are dealing are identified, the agreement of the buyer to buy these goods is in itself an acceptance of them.24