In an early English case 63 it was casually remarked by Abbott, C. J,: "I do not mean, however, to say that if the buyer were to take away the goods without the assent of the seller, that would not be sufficient to bind him." But it is probable that it would generally be held that the receipt or possession that the contract requires must be obtained with the assent of the seller.64 Certainly a forcible seizure is insufficient.65 The frequent use of the word "delivered" in the cases as a substitute for the words of the statute, "actual receipt," seems to indicate that the courts have in mind, at least, receipt acquired by an act on the part of the seller. The converse case arises where the seller attempts to force delivery on the buyer without his knowledge or assent. This was held insufficient in a recent Iowa decision.66 The court said: "To take a contract out of the Statute of Frauds the vendor must not only act with the purpose of placing the right of possession in the vendee, but the latter must actually accept with the intention of taking possession as owner." 67
60Townsend v. Hargraves, 118 Mass. 326. See also Vincent v. Germond, 11 Johns. 283.
61 A custom to regard something as acceptance and receipt is not enough. Calvert v. Schulti, 143 Mich. 441, 106 N. W. 1123. As acceptance has reference simply to the buyer's assent to becoming owner, it would seem that any act which, by a custom binding both parties, had been treated as an acceptance would be sufficient for that purpose under the statute; but for actual receipt an external test, of which intent of the parties cannot wholly supply the place, is necessary. Custom might, however, indicate assent to regard a delivery to a third person or at a particular place as a receipt by the buyer, and in Calvert v.
Schultz, seems to have done so. The court was doubtless influenced by the fact that the goods were not actually moved and the whole transaction rested in parol. See infra, Sec. 553. It does not invalidate receipt that the delivery was made not directly by the seller but by a third person on his order. First Nat. Bank v. Geske, 85 Wash. 477, 148 Pac. 593, Ann. Cas. 1917 B. 604.
62Bee Van Boskerck v. Torbert, 184 Fed. 419, 107 C. C. A. 383, Ann. Cas. 1916 E. 171, where a series of contracts for the sale of flour were made, and the question was raised to what contract a particular delivery of flour was to be applied.
63 Tempest v. Fttagendd, 3 B. & Ald. 680.
64 Armour v. Freeman Baking Co., (Mich. 1917), 163 N. W. 896; Young v. Iiigalsbe, 208 N. Y. 503, 102 N. £. 590.
65 Washington Ice Co. v. Webster, 62 Me. 341, 16 Am. Rep. 462; Baker v. Cuyler, 12 Barb. 667; Brand v. Focht, 3 Keyes, 409. In Baker v. Cuyler, 12 Barb. 667, 669, however, the court said: "Perhaps also, inasmuch as the defendant in taking the wheat claimed a right to do so under the contract, the plaintiffs might on learning the fact, have assented to that claim, and thereby rendered the taking a sufficient partial delivery and acceptance to make the contract binding." In commenting on the decision of Young v. Ingalsbe, 138 N. Y. App. D. 587, 122 N. Y. 8. 707, 151 N. Y. App. D. 375, 135 N. Y. S. 939,208 N. Y. 503, 102 N. E. 590, stated infra, Sec. 554, n. Professor Burdick says (16 Col. L. Rev. 273, 277):
"The majority of the Appellate Division and the Court of Appeals hold a different view. They interpret the statute to mean that if the seller asserts the validity of the sale, the statute is satisfied by evidence of an act of the buyer in accepting and receiving a part of the goods; but if the buyer asserts the validity of the sale, be must give evidence of an act of delivery by the seller. Certainly, this is reading into the statute a requirement which is not expressed in words."
66 Dierson v. Pctersmeyer, 109 Iowa, 233,80 N. W. 389.
67 It may be that the court in making this remark was also influenced by the idea that acceptance must be subsequent to delivery, an idea which seems erroneous in view of the authorities cited in Sec. 543, supra. The facts of the case make the decision obviously correct, for the buyer had refused to take the goods before the attempted delivery was made without his knowledge, in the place specified in the oral contract. A more difficult case would arise had there been no such prior refusal. Such a case is covered by the language in Goodwine v. Cad wallader, 158 Ind. 202, 204, 61 N. E. 939. The court said, quoting with approval from Dehority v. Pazson, 97 Ind. 253, 256: "The seller must part with his control with the purpose of vesting the right of property in the buyer who must receive with such intent on his part." Neither case, however, presented facto of the sort under discussion. See also McMillan v. Heaps, 85 Neb. 535, 123 N. W. 1041; Drake Hardware Co. v. DeWitt, 142 N. Y. App. Div. 189, 126 N. Y. S. 868.
If it be admitted that possession, taken without authority by the buyer, cannot be treated by him as actual receipt within the statute, it may yet be asked whether the other party may so treat it. It would seem that he might. The question has not arisen, but in a 'Wisconsin decision it was held that where the buyer fraudulently obtained goods from a bailee of the seller, the seller might treat this as receipt by the buyer, and acceptance of an offer which the seller had made.68