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.
In the absence of specific statutory provision part payment may be made after the contract of sale is made.2 In some jurisdictions, however, the statute provides that part payment must be made "at the time" that the contract of sale is made.3 Under such statute, if payment is made subsequent to the contract, "there must be a distinct renewal of, or assent to the terms of the original agreement, so as to make the payment apply on a present and not in a past agreement of sale,"4 in order to have the subsequent payment operate as a compliance with the statute.5 Thus where A agreed to transfer his stock in a corporation and to resign his position therein in consideration of certain goods, A's resignation presented some time thereafter was not part payment within the meaning of the statute unless there was such reaffirmance or restatement of the contract as to render the payment one made at the time.6
1 Marsh v. Hyde, 3 Gray (Mass.) 331; Ward v. Ward, 75 Minn. 269; 77 N. W. 965; Ortloff V. Klitzke, 43 Minn. 154; 44 N. W. 1085; Austin v. Boyd, 23 Mo. App. 317; Towne v. Davis. 66 N. H. 396; 22 Atl. 450; Jackson v. Tupper, 101 X. Y. 515; Schmidt v. Thomas. 75 Wis. 529; 44 N. W. 771.
2 Thompson v. Alger, 12 Met.
(Mass.) 428; Dallavo v. Richardson, - Mich. -; 96 N. W. 20.
3 Raymond v. Colton, 104 Fed. 219; 43 C C. A. 501; Milos v. Cova-cevich, 40 Or. 239; 66 Pac. 914.
4 Crosby Hardwood Co. v. Tester. 90 Wis. 412. 413; 63 X. W. 1057; citing Kirkhof v. Paper Co., 68 Wis. 674; 32 X. W. 766; Paine v. Fulton, 34 Wis. 83; Bates v. Chesebro, 32 Wis. 594; s. c, 36 Wis. 636.
5 Hunter v. Wetsell, 84 N. Y. 549; 38 Am. Rep. 544; s. c, 57 N. Y. 375; 15 Am. Rep. 508.
Under the theory that an unenforceable offer is revocable until so accepted as to be enforced, receipt and acceptance,7 or part payment8 by the vendee after the offer is revoked by the vendor is insufficient.