As has been previously seen 92 acceptance cannot be made by the seller himself acting as agent for the buyer, and as will hereafter be seen one party cannot be the agent for the other to sign a memorandum under the statute.93 By analogy it might be supposed that the seller could not act as agent or bailee for the buyer in such a way as to constitute a receipt of the goods. Under what has been called the New York rule, which requires more than mere words in order to satisfy the statute, this result is practically reached; for where the seller holds possession of the goods after the sale for the buyer, there is generally no outward dealing with the goods to indicate the change of ownership; they simply remain where they have been, but the seller has agreed to hold them in a different capacity.94 Accordingly, some decisions may be found which for a lower price than at first the buyer accepted. In the other cases in this note the buyer was in possession by virtue of a previous arrangement disconnected with the ultimate sale.
91 It is true that in Bristol p. Mente, 79 N. Y. App. Div, 67, 80 N. Y. S. 62; affd., without opinion, 178 N. Y. 600, 70 N. E. 1000, the majority of the court, without citing the earlier decisions, held that where part of the goods had been sent to the buyer for his examination, and he subsequently had agreed to buy the goods thus in his possesssion, there was an acceptance and receipt of part of the goods within the meaning of the statute. But in Young v. Ingalsbe, 138 N. Y. App. D. 687, 122 N. Y. S. 707, 161 N. Y. App. D. 376, 136 N. Y. S. 030, 208 N. Y. 603; 102 N. E. 600, without referring to its previous decision the court held a sale by a tenant in common to another who was in possession and remained in possession was unenforceable. The distinction which probably would be drawn is that in the earlier case the possession was transferred with reference to a possible sale. No such limit was, however, recognised by the lower court in Linde v. Huntington, 37 N. Y. Misc. 212, 75 N. Y. S.161. In Sillunan Lumber Co. v. Hunhota, 132 Wis. 610, 112 N. W. 1081, 11 L. R. A. (N. S.) 1186, a sale of lumber which was at the time of the sale in a portion of the seller's lumber yard occupied by the buyer under a license, was held within the statute, and the doctrine of Shutdler v. Houston, 1 N. Y. 261, 49 Am. Dec 316, approved,
92Supra, Sec. 548.
93 Infra, Sec. 581.
94 But in Walker v. Malsby Co., 134 Ga. 300, 67 8. E. 1039, 1041, the court. through saying "something more than the parol agreement of sale relating to the transfer of the title and the possession is necessary to constitute constructive delivery," adds that though some "act" is necessary, "It is no obdeny broadly that the seller can receive for the buyer.95 Such decisions, however, are at variance with the English law. The early decisions seem to have gone almost to the length of hold-ing that the mere making of a bargain and assenting to the transfer of the property in specified goods, of itself, operated as a receipt, since the seller thereby became bailee for the buyer by operation of law;96 but later, though the possibility was still admitted of actual receipt taking place while the seller still retained the goods, it was held that unless the seller had surrendered the lien allowed an unpaid vendor and held wholly as bailee for the buyer, there was no receipt within the statute.97 The same test has been adopted in jurisdictions which do not adopt the New York requirement of something other than words.98 The seller in possession will rarely have parted with his lien unless he has either been paid or has given credit. In either of these events, without any express words, it seems that the holding of the seller is necessarily wholly as agent for the buyer, and if it be admitted that the seller may act as the buyer's agent to receive, there seems no reason to question that there has been an actual receipt. Moreover, as payment satisfies the statute,99 receipt, where the goods have jection that such act be done by the vendor as the agent of the vendee." E. g., as in Tift v. Wight 4 Welcsky Co., 113 Ga. 681, 3ft S. E. 503, by segregating the goods find marking them with the purchaser's name.
95 Brunswick Grocery Co. v. Lamar, 116 Ga. 1, 42 S. E. 386. (Cf. preceding note.) See also Ficklin v. Tinder, 161 Mo. App. 283,143 S. W. 853.
96Chaplin v. Rogers, 1 East, 192, note; Anderson v. Scott, 1 Campb. 235, note; HodgBon v. Le Bret, 1 Campb. 233; Elmore v. Stone, 1 Taunt. 458; and Blenkmaop v. Clayton, 7 Taunt. 697. In Blackburn, Contract of Sale (1st ed.), p. 33, after referring to these decisions, the author says: "In all these cases there seems to have been ample evidence of an acceptance of the goods but scanty evidence of any actual receipt, if by that is to be understood a taking of possession; indeed, in Blenkinaop v. Clayton, as reported, there seems to have been none. After the decision of that last case, the current of authority set the other way."
97 Tempest v. Fitxgerald, 3 B. & Ald. 680; Bill v. Bament, 9M.4W. 36; Lillywhite v. Devereux, 15 M. & W. 285; Marvin v. Wallis, 6 E. &. B. 726.
98Ez parte Safford, 2 Low. 563; Teroey v. Doten, 70 Cal. 399, 11 Pac. 743; Devine v. Warner, 76 Conn. 229, 56 Atl. 562; Edwards v. Brown, 08 Me. 165, 56 Atl. 654; Safford v. McDonough, 120 Mass. 290; Rodgers v. Jones, 129 Mass. 420; Kixby v. Johnson, 22 Mo. 354; Sotham v. Weber, 116 Mo. App. 104, 92 S. W. 181; Clark v. Labreche, 63 N. H. 397; Rein-hart v. Gregg, 8 Wash. 191, 193, 35 Pac. 1075; Janvrin v. Maxwell, 23 Wis. 51.
99 Infra, Sec. 565.
been paid for, is immaterial. The fact that at the expiration of the period of credit the lien will revive if the price has not been paid is immaterial. In the meantime the right of the buyer to demand the goods has been absolute, and actual receipt, for however short a period, is enough.1 In regard to the sufficiency of the test provided by the sellers' lien, it should also be observed that by contract in many jurisdictions the seller may reserve an equitable lien independent of actual possession; but such a lien will not, of itself, prevent actual receipt by the buyer.2