The meaning of acceptance, under the statute, seems to be an assent on the part of the buyer to take specified goods as the statute is reduced to writing the memorandum, it has been held, makes the whole enforceable. Agnew v. Baldwin, 136 Wis. 283, 116 N. W. 641. This seems of doubtful correctness.
owner, though as has been shown it need not be an assent to be owner at once.11 It is, however, necessary that goods should be identified in order that there may be an acceptance, and if they are still part of a larger mass there can be no acceptance.12 It has also been said that if the transaction contemplates that the seller shall do something further to put the goods in deliverable condition, there can be no acceptance.13 This statement, however, should perhaps be qualified. It is of course possible if the parties so intend, though the presumed intention is otherwise, for title to pass at common law while the seller still has something to do upon the goods. It would seem equally possible for him to assent to those goods being the goods to which the bargain relates within the Statute of Frauds, and to accept them as such, the seller agreeing to do further work upon them. It has been decided at least that there may be acceptance, though the goods must be counted, weighed, or measured to fix the price.14 If goods are submitted to the examination of the buyer to determine whether they are the goods he has agreed to take, it seems obvious that there is as yet no acceptance except upon the construction of the statute given by the recent English decisions, to which reference will be made hereafter.15
11 The buyer "must have done something indicating that he has accepted part of the goods and taken to them as owner," by Lord Campbell, in Parker v. Wallis, 5 E. A B. 21, 26. So in Rohde v. Thwaites, 6 B. & C. 388, 393, Holroyd, J., said: "The sugars agreed to be sold being part of a larger parcel, the vendors were to select twenty hogsheads for the vendee. That selection was made by the plaintiffs, and they notified it to the defendant, and the latter then promised to take them away. That is equivalent to an actual acceptance of the sixteen hogsheads by the defendant." Where the action of the buyer is ambiguous and may or may not indicate acceptance, his intent is material. Jarrell v. Young, 106 Md. 280, 66 Atl. 60.
12 Terney v. Doten, 70 Cal. 309, 11
Pac. 743; Knight v. Mann, 118 Mass. 143; Atherton v. Newhall, 123 Mass. 141, 25 Am. Rep. 47; Rodgets v. Phillips, 40 N. Y. 519.
13Hinchman v. Lincoln, 124 U. S. 38, 51, 8 S. Ct. 369, 31 L. Ed. 337; Brunswick Grocery Co. v. Lamar, 116 Ga. 1, 42 S. E. 366; Oilman v. Hill, 36 N. H. 311; Outwater v. Dodge, 7 Cow. 85; Cooke v. Millard, 66 N. Y. 352, 22 Am. Rep. 619; Wegg v. Drake, 16 U. C. Q. B. 252.
14 Daniel v. Hannah, 106 Ga. 91, 31 S. E. 734; Macomber v. Parker, 13 Pick. 175; Cunningham v. Ashbrook, 20 Mo. 553. In the latter two cases the goods were delivered to the buyer while still unweighted. In Daniel v. Hannah, they were left at an agreed public place.
15 See infra, Sec. 547.
Mere delivery is not sufficient,16 and "under the Statute the buyer is at liberty to refuse even if bis action could be found to have been arbitrary and wholly unreasonable."17