By the terms of the statute acceptance and receipt of part of the goods suffice, and it is immaterial how small the part may be. It is. therefore, sufficient if the buyer receives a sample of the goods, provided the sample is part of the bulk; that is, if it diminishes the quantity of goods subsequently to be delivered to the buyer.11 But otherwise where the sample is merely to show what the goods are like.12 A sample given merely for the purpose of examination is of course insufficient.13 It is immaterial when the part is received and an executory contract for unspecified goods may be made binding by the specification and acceptance and receipt of a portion of the goods under this contract, though the remainder is unspecified.14 It is essential in order to make acceptance and receipt of part suffice, that the part be accepted and received as only a part of the goods. So that if the buyer when taking part declines to take more, the statute is not satisfied;15 nor is it satisfied if the seller in delivering part of the goods repudiates the remainder of the bargain.16 But where part of the goods was taken by the buyer into his control after the destruction of the remainder, this act of the buyer was held sufficient to render him liable for all the goods.17 If an agent selling goods for his principal agrees to throw in goods of his own in order to induce the buyer to enter the bargain, and the latter goods are delivered, the statute is not satisfied as to the other goods.18 Other decisions involving an acceptance and receipt of part of the goods, are given in the note below.19
10 Audenried v. Randall, 3 Cliff. 99; Mueller v. Guye, 12 Mo. App. 688; Wadhams v. Balfour, 32 Or. 313, 51 Pac. 642. In Wadhams v. Balfour the receipt does, not seem to have been negotiable, but the court held its delivery sufficient. In Meredith v. Meigh, 2 E. A B. 364, the court intimates that retention by the consignee, of a bill of lading might satisfy the statute.
11Hinde v. Whitehouse, 7 East, 558; Gardner v. Grout, 2 C. B. (N. S.) 340; Gilliat v. Roberts, 19 L. J. Ex. 410; Scott v. T. W. Stevenson Co., 130 Minn. 151, 153 N. W. 316; Moore v. Love, 67 Miss. 765; Brock v. Knower, 37 Hun, 609.
12 Morton v. Tibbett, 15 Q. B. 428; Dierson v. Fetersmeyer, 109 Iowa, 233, 80 N. W. 389; Richardson v. Smith, 101 Md. 15, 60 Atl. 612, 70
L. R. A. 321, 109 Am. St Rep. 652; Moore v. Love, 57 Miss. 765.
13 Mechanical Boiler Co. v. Kettner, 62 N. J. L. 544, 43 Atl. 699.
14Scott v. Eastern Counties Ry. Co., 12 M. & W. 33; Cavanaugh v. D. W. Ranlet Co., 229 Mass. 386, 118 N. E, 660; Crystal Ice Co. v. Holliday, 106 Miss. 714, 64 So. 658; Rickey v. Tenbroeok, 63 Mo. 563; Gabriel v. Kildare Elevator Co., 18 Okla. 318, 90 Pac. 10; Garton Toy Co. v. Buswell Lumber & Mfg. Co., 150 Wis. 341, 136 N.W. 147. See, however, May v.Ward, 134 Mass. 127; Ladnier v. Ladnier, 90 Miss. 475, 43 So. 946.
15Atherton v. Newhall, 123 Mass. 141, 25 Am. Rep. 47. See also Dixon v. Yates, 5 B. & Ad. 313; Pratt v. Chase, 40 Me. 269, 273.