1 Ruth, iv. 7.
It will thus be seen that, while different constructions of the seventeenth section have been adopted in different States, the decisions of the same State are in harmony; and if the statement of the text be correct, that the intention of the legislature of one State may have been different from that of another, the want of harmony may not be any fault of the courts. In England, however, the courts have been in distressing conflict; and though it would seem that a very sound construction of the term "contract of sale" had been reached in Lee v. Griffin, still, as this case was not determined by a court of error, it may not be certain that a final construction of the statute has yet been declared. The intention of Parliament in respect of contracts of sale may or may not have been based upon a literal and legal definition of the word "sale."
The following cases may also be referred to as to the effect of the seventeenth section: Waterman v. Meigs, 4 Cush. 497; Watts v. Friend, 10 B. & C. 446; Bird v Muhlenbrink, 1 Rich. 199; Eichelberger v. McCauley, 5 Har. & J. 213; Hight v. Ripley, 19 Me. 137.
1 Ruth, iv. 8, 9.
§ 1007. The civil law recognized two kinds of earnest; the one of which was a gage, by way of assurance; and the other was a deposit as part payment. The former only is earnest by our law; for the statute expressly distinguishes between it and part payment.4
§ 1008. Thirdly. We come next to the first exception of the statute, which is "that the buyer shall accept part of the goods so sold, and actually receive the same." The meaning to be attached to the terms "accept" and "actually receive " is that the purchaser must appropriate to himself the whole or a part of the goods. To create such an appropriation as that contemplated in the statute, there must be not only such an actual delivery by the seller as to destroy all further claim of lien or of stoppage in transitu on his part, but also, it has been said, such an actual acceptance by the buyer as to disable him from objecting to the quantity or the quality of the goods.5 The delivery must be a complete and final delivery,
1 Bracton, 1. 2, c. 27; Inst. 1. 3, tit. 24.
2 Langfort v. Tiler, 1 Salk. 113; Goodall v. Skelton, 2 H. Bl. 316. But see Greaves v. Ashlin, 3 Camp. 426.
3 Neil v. Cheves, 1 Bailey, S. C. 537.
4 Code Civile, 1590. The Italian custom to pay a caparra to the vetturino when the bargain is made for his vettura is precisely a case of payment of earnest. The caparra is any current coin, and may be of the smallest value, although ordinarily a scudo is paid. After it is given, the vetturino cousiders himself and the other party bound to the bargain.
5 Smith v. Surman, 9 B. & C. 561; Norman v. Phillips, 14 M. & W. 277; Howe v. Palmer, 3B.& Ald. 321; Curtis v. Pugh, 10 Q. B. 111; Outwater v. Dodge, 6 Wend. 397; Percival v. Blake, 2 Car. & Payne, 514; Bill v. Bament, 9 M. & W. 40, and other cases cited below. See, however, and the acceptance an ultimate acceptance, so as to reduce the goods to the actual possession of the vendee,1 unless they conclusive as to preclude him from rejecting the goods ? Now it will hardly be said that acceptance by the statute means more than is understood by receiving or failing to object to the goods upon a satisfactory inspection, weighing, or measuring of them. And yet, even in such a case, the acceptance may not be conclusive of the right of the buyer to object. If he should afterwards discover a material defect, he could in certain cases avail himself of the fact, while still admitting that there had been a valid sale of the goods; as in the case of an action for the breach of an implied or express warranty. Indeed, the sale of the goods by the buyer after inspection may not estop him from objecting to them. If he should afterwards be compelled to pay damages for any defect in them, he could still sometimes have recourse upon his own vendor by an action for deceit or breach of warranty. Where the rule of caveat emptor does not apply, the case must be peculiar where the sale or acceptance of goods can preclude the buyer from objecting to them.
Parker v. Wallis, 3 W. R. 417; 37 Eng. Law & Eq. 26; Morton v. Tibbett, 15 Q. B. 428. In this case an action was brought to recover the price of fifty quarters of wheat. It appeared that the plaintiff sold the wheat by sample to the defendant, who said he would send one Edgley, a general carrier and lighterman, on the following morning to receive the residue of the wheat in a lighter, for the purpose of conveying it by water from March, where it then was, to Wisbeach; and the defendant himself took the sample away with him. On 26th August, Edgley received the wheat accordingly. On the same day the defendant sold the wheat, at a profit, by the same sample, to one Hampson at Wisbeach market. The wheat arrived at Wisbeach in due course on the evening of Monday, the 28th August, and was tendered by Edgley to Hampson on the following morning, when he refused to take it, on the ground that it did not correspond with the sample. Up to this time the defendant had not seen the wheat, nor had any one examined it on his behalf. Notice of Hamp-son's repudiation of his contract was given to the defendants; and the defendant, on Wednesday, the 30th August, sent a letter to the plaintiff repudiating his contract with the plaintiff on the same ground. There was no memorandum in writing, and it was objected that there was no evidence of acceptance and receipt to satisfy the requisitions of the Statute of Frauds. Pollock, C. B., however, overruled the objection, and a verdict was found for the plaintiff. A motion being made to enter a nonsuit, the case came up for trial before the Queen's Bench; and Lord Campbell said: -
"In this case the question submitted to us is, whether there was any evidence on which the jury could be justified in finding that the buyer accepted the goods and actually received the same, so as to render him liable as buyer, although he did not give any thing in earnest to bind the bargain, or in part payment, and there was no note or memorandum in writing of the bargain.