When goods, at the time unspecified, have been ordered from a distance or are to be selected and appropriated by the seller and shipped to the buyer by a carrier, the statute is not satisfied by the delivery to the carrier. There is actual receipt but no acceptance.81 It has sometimes been thought to make
78a Cusack v. Robinson, I B. & S. 299; Butkley v. Waterman, 13 Conn. 328, Daniel v. Hannah, 106 Ga. 91, 31 S. E. 734; Barkalow v. Pfeiffer, 38 Ind. 214; Whaley v. Gale, 48 Mich. 193, 12 N. W. 33; Somen v. McLaughlin, 57 Wis. 358, 362, 15 N. W. 442. See also Castle v. Swift, 132 Md. 631,104 Atl. 187. But see Finney v. Apgar, 31 N. J. L. 266. And compare Howard v. Borden, 13 Allen, 299.
79Leonard v. Davis, 1 Black, 476, 17 L. Ed. 222; Calkins v. Lock wood, 17 Conn. 154, 42 Am. Dec. 729; Boyn-ton 0. Veazie, 24 Me. 286; Jewett v. Warren, 12 Mass. 300, 7 Am. Dec. 74; Carter v. Willard, 19 Pick. 1. See also Taosley v. Turner, 2 Bing. N. C. 151; Cooper c. Bill, 3 H. & G. 722.
80 The facts of Shindler v. Houston, 1 N. Y. 261, 49 Am. Dec. 316, necessarily involved this question. The same point was decided in the same way in a later Michigan decision. Gorman v. Brassard, 120 Mich. 611, 79 N. W. 903. In this case the agreement related to a quantity of curbstone lying where the seller had deposited it, completing a sale of bulky goods. See also Ladnier v. Ladiuer, 90 Miss. 475, 43 So. 946; Cooke v. Millard, 65 N. Y. 352, 22 Am. Rep. 619; Brewster v. Taylor, 63 N. Y. 587.
81 Hanson v. Armitage, 5 B. & Ald. 557; Acebal v. Levy, 10 Bing. 376; Meredith v. Meigh, 2 E. & B. 364; Hart v. Bush, E. B. & E. 494; Booth «. A. Levy etc. Co., 21 Cal. App. 427, 131. Pac. 1062; Billin v. Henkel, 9 Colo. 394, 13 Pac. 420; Lloyd v. Wright, 25 Ga. 215; Brunswick Grocery Co. v. Lamar, 116 Ga. 1, 4, 42 S. E. 366; Keiwert v. Meyer, 62 Ind. 587, 30 Am. Rep. 206; Hauaman v. Nye, 62 Ind. 485,30 Am. Rep. 199; Jones v. Mechanics' Bank, 29 Md. 287, 96 Am. Dec 633; Worthington v. Lipeiti, 131 Md. 254, 101 Atl. 625; Frostburg Min. Co. v. New England Glass Co., 9 Cush. 115; Johnson v. Cuttle, 105 Mass. 447, 7 Am. Rep. 545; Kemensky v. Chapin, 193 Man. 500, 79 N. E. 781; Gatras a difference if the buyer designated the carrier by which the goods were sent.82 This distinction, however, is obviously unsound, for unless the carrier were designated by the buyer expressly or impliedly, or unless the seller were given authority to select the carrier, the title to the goods would not pass at common law and there would be no need of raising any question about the statute. The carrier would not be the agent to receive for the buyer, much less the agent to accept. And even though the carrier be specially named by the buyer, it is still true that though the carrier has authority to receive for the buyer, he has not authority to accept. The agency of the carrier is to receive and carry goods, not to decide whether they conform to the contract or offer. Accordingly it is generally agreed now that even though the carrier is particularly designated by the buyer, delivery of the goods to him does not satisfy the statute.83 It should be observed, however, that if the goods are identified by the buyer's order, or contract, and not merely by the seller's appropriation, this constitutes acceptance; and the subsequent delivery of these goods to an authorized carrier, consigned to the buyer, being a receipt, the statute is satisfied.84 If the goods when shipped are consigned v. Cyr, 134 Mich. 233, 96 N. W. 26; Grimes n. Van Bechten, 20 Mich. 410; Rindskopf v. De Ruyter, 39 Mich. 1, 33 Am. Rep. 340; Smith v. Brennan, 62 Mich. 349, 28 N. W. 892, 4 Am. St. Rep. 867; Calvert v. Schulti, 143 Mich. 441, 106 N. W. 1123; Simmons Hardware Co. v. Mullin, 33 Minn. 195, 22 N. W. 294; Fontaine v. Bush, 40 Minn. 141, 41 N. W. 466, 12 Am. St. Rep. 722; Waite v. McKelvy, 71 Minn. 167, 73 N. W. 727; Salomon v. King, 63 N. J. L. 39, 42 Atl. 745; Shepherd v. Pressey, 32 N. H. 49, 55; Standard Wall Paper Co. v. Towns, 72 N. H. 324, 56 Atl. 744; Rodgers v. Phillips, 40 N. Y. 519; Allard v. Greaaert, 61 N. Y. 1; Fein v. Weir, 129 N. Y. App. D. 299, 114 N. Y. S. 426 (affd. 199 K. Y. 540, 92 N. E. 1084); Hudson Furniture Co. «. Freed Furniture & Carpet Co., 10 Utah, 31, 36 Pac. 132.
See, however, the contrary decision of Strong v. Dodds, 47 Vt. 348. In Iowa where the statute does not require acceptance it has been held that delivery to a carrier under the circum-stances suggested satisfies the statute. See supra, Sec. 540, n. 1.
82 Rodgers v. Phillips, 44 N. Y. 519, by Daniels, J.; Spencer v Hale, 30 Vt. 314,73 Am. Dec. 309.
83 United Hardware Furniture Co. v. Blue, 59 Fla. 419, 52 So. 364, 35 L. R. A. (N. S.) 1038; Jones v. Mechanics' Bank, 29 Md. 287, 96 Am. Dec. 533; Smith v. Brennan, 62 Mich. 349, 28 N. W. 892, 4 Am. St. Rep. 867; Fontaine v. Bush, 40 Minn. 141, 41 N. W. 465, 12 Am. St. Rep. 722; Rodgers v. Phillips, 40 N. Y. 519, by Woodruff, J.; Allard v. Greaeert, 61 N. Y. 1.
84 Oilman v. Barnard, 7 Gray, 554; Cross p. O'Doimell, 44 N. Y. 661, by the seller to his own order, though the bill of lading is indorsed and sent forward with a draft for the price, delivery to the carrier is no receipt by the buyer, and, therefore, though the goods were identified and assented to before shipment, the statute is not satisfied.85 If the goods arrive at their destination and the buyer sends a truckman to haul them to the buyer's place of business, even then there may be no acceptance, for the buyer's dealing with the goods is as consistent with a temporary possession for the purpose of inspection as with an assumption of ownership.86