1 Farina v. Home, 16 M. & W. 119. In this case, where an order was given upon a wharfinger, Parke, B., said: " This warrant is no more than an engagement by the wharfinger to deliver to the consignee, or any one he may appoint; and the wharfinger holds the goods as the agent of the consignor (who is the vendor's agent), and his possession is that of the consignee, until an assignment has taken place, and the wharfinger has attorned, so to speak, to the assignee, and agreed with him to hold for him. Then, and not till then, the wharfinger is the agent or bailee of the assignee, and his possession that of the assignee; and then only is there a constructive delivery to him. In the mean time, the warrant, and the indorsement of the warrant, is nothing more than an offer to hold the goods as the warehouseman of the assignee." See, also, Bentall v. Bum, 3 B. & C. 423; Lackington v. Atherton, 7 M. & G. 360. But see Hollingsworth v. Napier,. 3 Caines, 185; Wilkes v. Ferris, 5 Johns. 335; Searle v. Keeves, 2 Esp. 598; Harman v. Anderson, 2 Camp. 213; Withers v. Lyss, 4 Camp. 237; Tucker v. Ruston, 2 C & P. 86.
2 Dodsley v. Varley, 12 Ad. & El. 632. See, also, Searle v. Keeves, 2 Esp. 598.
3 New v. Swain, Dan. & Lloyd, 193.
§ 1012. But where the property bargained for is left in the possession of the vendor, no merely constructive or symbolical delivery will be sufficient, unless, perhaps, under circumstances showing that he holds them as agent of the other party and has abandoned all claim to them of every kind, - as where the vendee exercises rights of ownership over them, and sells or takes a portion of them away.3 So, if the vendor, after the bargain is complete, borrows the article sold of the vendee, agreeing to return it at a certain time, there may be a sufficient acceptance to bind the vendee, although the property never was actually delivered to him.4 But such cases stand on peculiar and exceptional grounds, and are not readily admitted by the courts.5 The distinction is that if the vendor retains possession as owner, the statute is not complied with; otherwise if his possession is that of agent for the vendee. But in no case will a constructive delivery be inferred from mere words; and even though the goods be ponderous and not easily removed, the mere marking them and pointing them out is not sufficient. If, therefore, in a sale of lumber, the vendor should set the portion purchased aside and measure it, and then, pointing it out to the vendee, say, "The lumber is yours," and the vendee should accept, the statute would not be satisfied, although the risk and right of property would pass.1
1 Kent v. Huskinson, 3 Bos. & Pul. 233; Jordan v. Norton, 4 M. & W. 155; Percival v. Blake, 2 C. & P. 514.
2 Elliott v. Thomas, 3M.&W. 170, 177. And see Cunliffe v. Harrison, 6 Exch. 903; 5 Eng. Law & Eq. 539.
3 Chaplin v. Rogers, 1 East, 192; Vincent v. Germond, 11 Johns. 283; Beaumont v. Brengeri, 5 Com. B. 301. But see Thompson v. Maceroni, 3 B. & C. 1; Baldey v. Parker, 2 B. & C. 37.
4 Marvin v. Wallis, 6 El. & B. 726.
5 Shindler v. Houston, 1 Denio, 48; 1 Comst. 261. See, also, Carter v. Toussaint, 5 B. & Ald. 855; Tempest v. Fitzgerald, 3 B. & Ald. 680. See Story on Sales, § 278. The case of Elmore v. Stone, 1 Taunt. 458, in which a horse was bought and allowed to remain in the possession of the vendor, who removed him to another stable, and the possession was held to be sufficient to satisfy the statute, has not been upheld in subsequent cases; in fact, it is said to be overruled in Proctor v. Jones, 2 C. & P. 532. See Howe v. Palmer, 3 B. & Ald. 321, 321; Bailey v. Ogden, 3 Johns. 399; Bentall v. Burn, 3 B. & C. 423. But see Marvin v. Wallis or Wallace, 6 El. & B. 726; 37 Eng. Law & Eq. 6; Beaumont v. Brengeri, 5 Com. B. 313.
§ 1013. Whether the facts of the case, when uncontroverted, constitute an acceptance within the statute, is a matter of law for the court; but whether the party, by his acts, intended an acceptance in point of fact is a question for the jury.2
§ 1014. Where the purchaser pays for and receives some of several separate articles, leaving the residue undelivered and unpaid for, or where several articles are purchased at the same time, to be paid for on delivery, and the purchaser afterwards receives and pays for some only of the articles, the contract as to the residue is within the statute.3
§ 1015. Where a contract is made for the sale of an article of merchandise at a stipulated price, although it should be void by the Statute of Frauds (the acts of the parties not placing it within the exceptions), yet, if a subsequent delivery and acceptance be made, it operates to vivify the contract, and the price agreed upon may be recovered.4 But the subsequent taking of mere earnest money would not seem to have the same effect.5
1 Shindler v. Houston, 1 Denio, 48; 1 Comst. 261. See note 3, p. 296.
2 2 Stark. Ev. 611; Hinde v. Whitehouse, 7 East, 558; Chaplin v. Rogers, 1 East, 192; Phillips v. Bistolli, 2 B. & C. 511. See Parker v. Wallis, 3 W. R. 417; 37 Eng. Law & Eq. 26; Saunders v. Topp, 4 Exch. 390; Morton v. Tibbett, 15 Q. B. 428; Bushel v. Wheeler, 15 lb. 442, n.; Elliott v. Thomas, 3 M. & W. 176.
3 Mills v. Hunt, 20 Wend. 434; Tipton v. Feitner, 20 N. Y. 425; Keeler v. Vandervere, 5 Lans. 313; Aldrich v. Pyatt, 64 Barb. 391 (1872).
4 Sprague v. Blake, 20 Wend. 61. 5 Ibid.