The statute specifies two ways in which contracts or sales within its terms may be made binding, besides the giving of a memorandum: (1) Acceptance of the whole or part of the goods (or choses in action) sold, and actual receipt of the same; (2) payment of earnest money or a portion of the price. There has been elaborate judicial construction of these requirements, which are almost universally stated in substantially the same language in the American statutes.1 These statutory requirements are obviously additional to what the common law requires; although the same circumstances may sometimes indicate both the formation of a bargain at common law and a satisfaction of the statutory requirements.
In order to recover, therefore, a plaintiff must show a valid contract or sale, at common law, and satisfaction of the statute in one of the three specified ways. Until this has been done, the defendant may withdraw without liability.2 The requirement of a memorandum is obviously suitable either for a contract to sell or a Bale. The other two modes of satisfaction seem more naturally to apply to sales than to executory contracts. It is clear, however, that earnest money, or a portion of the price, may be paid by the buyer before the time when it is agreed that the property shall pass; and if this is done the executory contract must become binding. Even acceptanee and actual receipt of the goods may take place before title has passed, though the case is so unusual as to make it appear strange. The seller may, however, deliver to the buyer the goods to which the contract relates and the buyer may accept them though it is agreed that the property shall not pass until some time later. The ordinary case of a conditional sale is an instance of the sort. Such a bargain, though oral, is enforceable if the buyer accepts and receives the goods, though he does not get complete title as yet.3 Also the seller may deliver part of the goods and transfer the property in these, while the contract as to the rest of the goods still remains executory.4 Satisfaction of the statute by acceptance and actual receipt of part of the goods 5 or by part payment makes the entire bargain of the parties enforceable, even though the bargain contains as a part of it another agreement to sell besides that which has been partly performed. Thus if the seller of goods agree as part of the original bargain to take them back if desired, this agreement of repurchase becomes enforceable by the acceptance and receipt or payment by the buyer.6 If there has been accept-
1 In Indiana the statute uses simply the word "receive" without refer-erence to acceptance. Bums' Annot. St. (1914), Sec. 7470. In Iowa the corresponding requirement is that part of the goods be "delivered." Code, Sec. 4625. As to the construction of this language, sec Bullock v. Tschergi, 13 Fed. 345; Legget & Meyer Co. v. Collier, 89 Iowa, 144, 56 N. W. 417; Dieraon v. Petersroeynr, 109 Iowa, 233, 80 N. W. 389; Smith v. Bloom, 159 Ia. 592, 141 N. W. 32; Munroe v.
Mundy, 184 Iowa, 707,146 N. W. 819. The first of these cases held delivery to a carrier for the buyer satisfied the statute, and the same conclusion was reached by the Nebraska court, construing the Iowa statute. Fruit Dispatch Co. v. Gilinsky, 84 Neb. 821,122 N. W. 45. The second Iowa decision cited held the contrary. Many American statutes make no reference to earnest but any sum of money paid to bind a bargain of sale would in fact always be a part payment of the price.
2 Smith v. Hudson 6 B. & S. 431; Diereon v. Peteremeyer, 109 Iowa, 233, 80 N. W. 380; Schwarts v. Church of Holy Cross, 60 Mian. 183, 63 N. W. 266.
3 Pinkhsm v. Mattox, S3 N. H. 600. 4 Garfield v. Paris, 96 U. S. 657, S62,
24 L. Ed. 821; Rickey v. Tenbroeck, 63 Mo. 663.
5 By the words of the statute it is sufficient if part of the goods are accepted and actually received. See infra, Sec. 661.
6Williams v. Burgess, 10 A. & E.
499; Gurwell v. Morris (Cal. App.), 83 Pac. 678; Hilliard v. Weeks, 173 Mass. 304, 53 N. E. 818; Armstrong v. Oder, 220 Mass. 112, 107 N. E. 392; Fremont Carriage Co. v Thomson, 65 Neb. 370, 91 N. W. 376; Treoholm v. Kloepper, 88 Neb. 236, 129 N. W. 436; Johnston v. Trask, 116 N. Y. 136, 22 N. E. 377, 5 L. R. A. 930, 15 Am. St. Rep. 394; Fay c. Wheeler, 44 Vt. 292; Hankwitz v. Barrett, 143 Wis. 639, 128 N. W. 430; Korrer v. Madden, 152 Wis. 646, 140 N. W. 32S. Also if that portion of a contract which is within ance and receipt, it is also immaterial that the terms of the contract are in dispute.7