This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Acceptance and receipt must be acceptance and receipt by the purchaser. Acts of the seller alone, though in performance of the contract, cannot serve as compliance with the statute of frauds.1 If the vendor delivers to a common carrier whom he selects, the goods sold by oral contract, such delivery does not amount to a receipt and acceptance within the meaning of the statute.2 If the vendee takes the goods from the carrier, and pays the freight, receipt and acceptance exist.3 Even if the vendee has selected the carrier, the weight of authority is that mere delivery by the vendor to the carrier is not receipt and acceptance by the vendee, since the carrier is authorized only to transport the goods, and not to bind vendee by accepting them.4 So acts in performance of the contract by the vendor not amounting to delivery, such as piling the property by the side of the road under the terms of the contract,5 or altering and painting wagon trucks in accordance with the order,6 do not satisfy the require ments of the statute.7 A tender by the vendor or his agent on condition of receiving immediate payment is not receipt and acceptance.8 Thus sending stock to a bank with a draft attached for delivery to vendee on payment of the draft is not receipt and acceptance.9 A transfer of possession in contemplation of immediate payment does not constitute receipt and acceptance where possession was re-delivered by the prospective vendee because he had not the means of paying therefor.10 If the vendor retains possession as bailee of the vendor, this has been held sufficient.11 If the vendee had possession before the sale, and retains possession afterwards, sufficient receipt and acceptance exist.12 If the property is in the possession of a third person as bailee of the vendor, and such third person agrees to hold them thenceforth for the vendee, sufficient receipt and ac ceptance exist.13 If the third person does not agree to hold the property as bailee of the vendee, but retains it in his original capacity as agent of the vendor, his rentention is not receipt and acceptance.14 We have already seen15 that the transfer of a warehouse receipt or bill of lading given to vendor "or order" or with other words of assignibility amounts to constructive delivery. Such a form of order may be considered as a consent of the warehouse man or carrier, given in advance, to hold the goods for the assignee of the order.16
1"No act of the seller alone, in however strict conformity to the terms of the contract, will satisfy the statute. There must be acts of the buyer, of accepting and actually receiving the goods sold, beyond the mere fact of entering into the contract to bind the latter." Shepherd v. Pressey, 32 N. H. 49, 55; quoted in Dierson v. Petersmeyer, 109 la. 233, 235; 80 N. W. 389. (Citing Maxwell v. Brown, 39 Me. 98; 63 Am. Dec. 605; Boardman v. Spooner, 13 All. (Mass.) 353; 90 Am. Dec. 196; Prescott v. Locke, 51 N. H. 94; 12 Am. Rep. 55.
2Denmeed v. Glass, 30 Ga. 637; Hausman v. Nye, 62 Ind. 485; 30 Am. Rep. 199; Keiwert v. Meyer, 62 Ind. 587; 30 Am. Rep. 206; Ft. Worth Packing Co. v. Meat Co., 86 Md. 635; 39 Atl. 746; Gatiss v. Cyr, - Mich. -; 96 N. W. 26; Kuppen-heimer v. Wertheimer, 107 Mich. 77; 61 Am. St. Rep. 317; 64 N. W. 952;
Rindskopf v. De Ruyter, 39 Mich. 1; 33 Am. Rep. 340; Simmons Hardware Co. v. Mullen, 33 Minn. 195;
22 N. W. 294; Rogers v. Philips, 40 N. Y. 519; Hudson Furniture Co. v. Carpet Co., 10 Utah 31; 36 Pac. 132; Agnew v. Dumas, 64 Vt. 147;
23 Atl. 634; Williams-Hayward Shoe Co. v. Brooks, 9 Wyom. 424; 64 Pac. 342.
3Leggett v. Collier, 89 la. 144; 56 N. W. 417.
4 Taylor v. Smith (1893), 2 Q. B. 65; Billin v. Henkel, 9 Colo. 394; 13 Pac. 420; Jones v. Bank, 29 Md. 287; 96 Am. Dec. 533; Johnson v. Cuttle, 105 Mass. 447; 7 Am. Rep. 545; Smith v. Brennan, 62 Mich. 349; 4 Am. St. Rep. 867; 28 N. W. 892; Waite v. McKelvy, 71 Minn. 167; 73 N. W. 727; Allard v. Grea-sert, 61 N. Y. 1. Contra, Strong v. Dodds, 47 Vt. 348; Spencer v. Hale, 30 Vt. 314; 73 Am. Dec. 309.
5 Finney v. Apgar, 31 N. J. L.
266. But see, apparently contra, Daniel v. Hannah, 106 Ga. 91; 31 S. E. 734.
6 Parvelski v. Hargreaves, 47 N. J. L. 334.
7 Hanson v. Roter, 64 Wis. 622; 25 N. W. 530.
8 Spear v. Bach, 82 Wis. 192; 52 N. W. 97.
9 Spear v. Bach, 82 Wis. 192; 52 N. W. 97.
10 Spear v. Bach, 82 Wis. 192; 52 N. W. 97.
11 Green v. Merriman, 28 Vt. 801. (In this case A sold B certain sheep which were then in a yard of A's. A and B then drove them to another yard of A's, where by agreement they were to be left two days, B to pay for keeping them. This was held a sufficient receipt and acceptance. )
12 It is "all the delivery that could be made." Snider v. Thrall, 56 Wis. 674, 676; 14 N. W. 814.
13 King v. Jarman, 35 Ark. 190; 37 Am. Rep. 11; Amson v. Dreher, 35 Wis. 615. Contra, Gunn v. Knoop, 73 Ga. 510; Sparrow v. Pate, 67 Ga. 352. These cases, however, are controlled by Sec. 1593 of the Georgia code providing that title does not pass until the price is paid where delivery and payment are by the terms of the contract concurrent; hence the loss of the cotton in the hands of the warehouseman fell upon the vendor.
14 Farina v. Home, 16 M. & W. 119; Bentall v. Burn, 3 B. & C. 423; Boardman v. Spooner, 13 All. (Mass.) 353; 90 Am. Dec. 196; Bas-sett v. Camp, 54 Vt. 232.
15 See Sec. 709.