In Rodgers v. Phillips," Daniels, J., said, referring to an acceptance of an alleged bill of lading by the buyer after the goods which it represented had been destroyed: "What they did in this respect was done before they had received any intelligence of the misfortune to the property. And even if prior to that time they had determined to accept the shipment by accepting the bill of lading upon the supposition and belief that the property was then afloat, they became at liberty to rescind their determination and refuse to receive it as soon as they discovered that it had been formed under a mistake of a material fact affecting it." The doctrine thus stated seems open to question. By hypothesis, the requisites at common law for transfer of title have been satisfied and all that is necessary is to satisfy the statute. There seems no reason why the buyer should be protected if the requirements of the statute have actually been satisfied, even though he was induced to satisfy them by a mistaken belief in regard to an essential fact. He is only doing what he ought to do in any event, although he could not be legally compelled to do it. Where a man performs a duty, even if an unenforceable one, such as paying a debt barred by the Statute of Limitations, or accepting goods which he had bought under an oral contract, mistake affords no reason for excusing him.58 The case presents a certain analogy to that of a memorandum used to satisfy the Statute of Frauds, though not made for that purpose.59 Accordingly, in Massachusetts, the buyer has been held liable upon an acceptance and receipt of part made under these circumstances.60
55Hatch v. Gluck, 47 N. Y. Mine. Rep. 122, 93 N. Y. S. 508. See supra. Sec.Sec. 540, 542.
56 Smith v. Hudson, 8 B. & S. 431.
57 40 N. Y. 619.
58 Townsend v. Horgraves, 118 Mass. 325. See also infra, Sec. 561.
59See infra Sec. 573. In Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140, a letter written after loss of goods to which it related, protesting against being charged for them, was held a sufficient memorandum.
There is less opportunity for doubt as to the meaning of actual receipt than there is as to the meaning of acceptance. Whatever difficulties exist in regard to receipt are rather due to the inherent difficulty of determining what is, in fact, possession, than to any doubt as to the meaning of the word "receipt." All cases admit that it means acquisition of possession by tike buyer, and in the following sections the question of what is such possession will be considered.61 A question may arise, however, whether goods admittedly contracted for and accepted and received were due and received under the particular oral contract, enforcement of which is sought.62