By the terms of this section of the statute, acceptance and actual receipt of part or all of the personalty sold is sufficient to make the contract enforceable, without a written memorandum or a payment of part of the purchase price or earnest.1 Accordingly the statute does not apply where there has been either full performance,2 or receipt and acceptance of part of the person-

2 Pollock and Maitland's History of English Law (2nd Edition), Vol. II., p. 209.

3 Howe v. Hayward, 108 Mass. 54; 11 Am. Rep. 306.

4Noakes v. Morey, 30 Ind. 103; Jennings v. Dunham, 60 Mo. App. 635.

5 Blenkinsop v. Clayton, 7 Taunt. 597.

1 Dinkier v. Baer, 92 Ga. 432; 17 S. E. 953; Coffin v. Bradbury, 3 Ida. 770; 95 Am. St. Rep. 37; 35 Pac. 715; Leggett, etc., Co. v. Collier, 89 la. 144; 56 N. W. 417; Leonard v. Medford, 85 Md. 666; 37 L. R. A. 449; 37 Atl. 365; French v. Bank. 179 Mass. 404; 60 N. E. 793; New England, etc., Co. v. Worsted 68

Co., 165 Mass. 328; 52 Am. St. Rep. 516; 43 N. E. 112; Sullivan v. Sullivan, 70 Mich. 583; 38 N. W. 472; Beyerstedt v. Mill Co., 49 Minn. 1; 51 N. W. 619; Long v. Martin. 71 Mo. App. 569; Wyler v. Rothschild, 53 Neb. 566; 74 N. W. 41; Riley v. Bancroft, 51 Neb. 864; 71 N. W. 745; Roman v. Bressler, 32 Neb. 240; 49 N. W. 368; Duzan v. Meserve, 24 Or. 523; 34 Pac. 548; Ting-ey v. Land Co., 9 Wash. 34; 36 Pac. 1098; Kimble v. Ford. 7 Wash. 603; 35 Pac. 395; Gerndt v. Conrad, 117 Wis. 15; 93 X. W. 804; Alexander v. Oneida Co., 76 Wis. 56; 45 N. W. 21.

2Hinkle v. Fisher, 104 Ind. 84; 3 N. E. 624; Edwards v. Brown, 98 alty sold.3 In dealing with decisions as distinguished from dicta, it is difficult to deduce an accurate definition of receipt apart from acceptance, or acceptance apart from receipt, since if either is lacking the presence of the other is not enough to uphold the contract. Acceptance and actual receipt must coexist. The statute uses the word "and," not "or," and one without the other is insufficient.4 Accordingly mere delivery of

Me. 165; 56 Atl. 654; Gray v. Peterson, 64 Neb. 671; 90 N. W. 559; Brown v. Loan & Trust Co., 117 N. Y. 266; 22 N. E. 952; Walker v. Bamberger, 17 Utah 239; 54 Pac. 108.

3 Scott v. Ry., 12 M. & W. 33; Coffin v. Bradbury, 3 Ida. 770; 95 Am. St. Rep. 37; 35 Pac. 715; Weeks v. Crie, 94 Me. 458; 80 Am. St. Rep. 410; 48 Atl. 107; New England, etc., Co. v. Worsted Co., 165 Mass. 328; 52 Am. St. Rep. 516; 43 N. E. 112; Mississippi Cotton Oil Co. v. Smith, - Miss. -; 33 So. 443; Badger Telephone Co. v. Telephone Co., - Wis. -; 97 N. W. 907.

4 Devine v. Warner, 75 Conn. 375; 96 Am. St. Rep. 211; 53 Atl. 782; Corbett v. Wolford, 84 Md. 426; 35 Atl. 1088; Knight v. Mann, 118 Mass. 143; Powder River Livestock Co. v. Lamb, 38 Neb. 339; 56 N. W. 1019; Wilcox Silver Plate Co. v. Green, 72 N. Y. 17; Curtis v. Lumber Co., 114 N. C. 530; 19 S. E. 374; Dinnie v. Johnson. 8 N. D. 153; 77 N. W. 612; Galvin v. Mac-Kenzie, 21 Or. 184; 27 Pac. 1039. "The question as to what is an acceptance and actual receipt of goods within the purview of the statute is one on which the decisions are at variance. These propositions may be considered as settled by the great weight of authority in England, as well as in the courts of this country, and the doctrines embraced in them accord with the reasons which gave rise to this important statute. First, the statute is not complied with unless two things concur - the buyer must accept and actually re-ceive part of the goods and the contract will not be good unless he does both. Second, there may be an actual receipt without acceptance and an acceptance without a receipt -an acceptance to be inferred from the assent of the buyer, meant by him to be final, that the goods are to be taken by him as his property under the contract. Third, it is immaterial whether the buyer's refusal to take the goods be reasonable or not. If he refuses the goods, assigning grounds false or frivolous or assigning no reasons at all, it is clear that he does not accept the goods. The question is not whether he ought to accept, but whether he has accepted them. Fourth, the question of acceptance or not is a question as to what was the intention of the buyer as signified by his outward acts. . . . Another proposition that is vouched for upon principle and by the weight of authority is that possession of itself is not evidence of an acceptance, and that a compliance with the statute would require an acceptance by the vendee as owner." Mechanical Boiler Cleaner Co. v. Kellner, 62 N. J. L. 544, 558; 43 Atl. 599. For similar views see Devine v. Warner, 76 the goods sold, transferring possession, but not under such circumstances as to show that the vendee has accepted them as full or part performance of the contract of sale is not compliance with the statute.5 Thus if A sells hay standing in ricks to B, to be transported by A to a station to be selected by B, at which point B was to take charge of the hay and pay for it, acts of B's servants under his direction in taking some of the hay from one of the ricks and trimming down one of the sides, do not constitute receipt and acceptance as a matter of law, so that the vendor can recover where the hay was burned a few minutes after this work on it had begun.6 Receipt and acceptance need not occur at the same time. Receipt may precede acceptance,7 or acceptance may precede receipt.8 The definition of the one is not infrequently so framed as to imply the presence of the other. "Acceptance is the receipt of the thing with an intention to retain it, indicated by some act or words sufficient for that purpose."9 It is therefore safer to state in what cases they co-exist than to attempt to state in what cases they exist separately. As far as their meanings can be treated separately, these terms are discussed in the following sections. Whether receipt and acceptance exist is a question of fact.10