In a leading case in New York 74 which has had great subsequent influence, the court laid down a rule more stringent than that suggested in the preceding paragraph. Wright, J., said: "The uniform doctrine of the cases, however, has been that in order to satisfy the statute there must be something more than mere words; that the act of accepting and receiving required to dispense with a note in writing implies more than a simple act of the mind." It may be readily admitted that the last sentence of this quotation is sound. The preceding sentence, that mere words are necessarily insufficient, is not so clear. In the case itself the court held that lumber on a dock apart from other lumber could not, as matter of law, be received by the buyer though the dock was, apparently, a public or quasi-public place. The lower court had left the matter to the jury with the instruction, "that if they were satisfied that it was the intention of the parties to consider the lumber delivered at the time of the bargain, and that nothing further was agreed or contemplated to be done in order to change the title in or possession of the lumber, the plaintiff was entitled to recover; that the sale was not within the Statute of Frauds and did not require any note or memorandum in writing, provided they should find from the evidence that there was a delivery and acceptance of the lumber at the time of the bargain." The majority of the upper court held that the statute could not have been satisfied, since the alleged delivery consisted merely of words. This decision and the rule on which it is based have been followed in New York75 and some other States,76 but it seems to commend itself neither as a construction of the statute nor as a practical working rule. The aim of the statute doubtless was to require certain things, because in general these things would supplement or be a substitute for parol evidence; but the statute did not and could not well do away with parol evidence altogether nor prevent the decision of cases turning sometimes solely upon parol evidence. It did not attempt to do this, it simply prescribed certain requisites; one of them is actual receipt. If the buyer is, as a matter of fact, in possession and control of goods, the fact that he acquired the possession without any act other than words is immaterial. Where property is bulky it will not infrequently happen that transfer of possession will be made by the statement of the seller that he relinquishes ownership and control to the buyer and the assent of the buyer to receive this. As a practical matter the New York rule is a bad one, for it is not always easy to deal with bulky property otherwise than as the parties did in the case under discussion. They should not be penalized for adopting the only natural and reasonable means of delivery. The language of this decision has been elsewhere criticised.77 It is perhaps doubtful whether the enactment by New York of the Uniform Sales Act will involve any change in the rule of the courts of the State on this matter.78
72Dodaley v. Varley, 12 A. & E. 632; Cusack v. Robinson, 1 B. & S. 299; Schroder v. Palmer Hardware Co., 88 Ga, S78,16 S. E. 327; Moore v. Hays, 12 Ind. App. 470, 40 N. E. 638; Smith v. Bloom, 159 Iowa, 592, 141 N. W. 32; Mundy p. Scott, 104 Iowa, 707, 140 N. W. 819; Snow v. Warner, 10 Met. 132,43 Am. Dec. 417; Vanderbiit v. Central R, R,, 43 N. J. Eq. 669, 12 Atl. 188.
73Shelton v. Thompson, 96 Mo. App. 327, 70 S. W. 256. See also Scully v. Smith, 110 N. Y. App. Div. 88, 96 N. Y. S. 998.
74 Shindler v. Houston, 1 N. Y. 361, 49 Am. Deo. 316.
75Marsh v. Rouse, 44 N. Y. 643; Hallenback v. Cochran, 30 Hun, 410; Drake Hardware Co. v. DeWitt, 143 N. Y. App. Div. 189,126 N. Y. 8. 868; Young v. Ingalsbe, 138 N. Y. App. D. S87, 122 N. Y. 8. 707, 161 N. Y. App. D. 376, 135 N. Y. S. 939, 208 N. Y. 503, 102 N. E. 590; Hinchman v. Lincoln, 124 U. S. 38, 8 S. Ct 369, 31 L: Ed. 337. The decision last cited came up from the Circuit Court for the Southern District of New York and involved a discussion of New York law.
76 Brunswick Grocery Co. v. Lamar, 116 Ga. 1, 42 8. E. 360; Walker v. Malaby Co., 134 Ga. 399,67 S. E. 1039;
Dehority v. Paxson, 97 Ind. 253; Gorman v. Brassard, 120 Mich. 611. 79 N. W. 903; Calvert v. Schulta, 143 Mich. 441, 106 N. W. 1123; Yeiter v. Campau, 174 Mich. 94,140 N. W. 479; Friedman v. Pious, 158 Wis. 435, 149 N. W. 218. See also Edwards v. Grand Trunk R. R. Co., 54 Me. 105.
77 Browne, Statute of Frauds, Sec. 330. Burdick, 16 Col. L. Rev. 273. See also Wilson v. Hotchkiss, 171 Cal. 617, 154 Pac. 1, L. R. A. 1910 F. 389, Ann. Cas. 1917 B. 570.
78See Bogert, Sales in New York, p. 26. But see Professor Burdkk's article, 10 Col. L. Rev. 273,279.
If the agreement of the parties is that the goods shall be delivered at a particular place, which is not in the control of any one, but to which the buyer has access and from which he may take the goods when he pleases without asking per mission of any one, there is receipt within the statute.78a If the goods at the time of the bargain are already lying in this place, the statement by the seller that he delivers them is likewise good delivery by the seller and receipt by the buyer,79 unless where the New York rule, requiring more than mere words to satisfy the statute, prevails.80