"It would be very difficult to reconcile the cases on this subject; and the differences between them may be accounted for by the exact words of the seventeenth section of the Statute of Frauds not having been always had in recollection. Judges, as well as counsel, have supposed that, to dispense with a written memorandum of the bargain, there must first have been a receipt of the goods by the buyer, and, after that, an actual acceptance of the same. Hence, perhaps, has arisen the notion that remain in the possession of the vendor as agent for the vendee, which they may do, and the bargain still be binding.1 It there must have been such an acceptance as would preclude the buyer from questioning the quantity or quality of the goods, or in any way disputing that the contract has been fully performed by the vendor. But the words of the act of Parliament are: [here he recited them.] It is remarkable that, notwithstanding the importance of having a written memorandum of the bargain, the legislature appears to have been willing that this might be dispensed with, where by mutual consent there has been part performance. Hence the payment of any sum in earnest to bind the bargain, or in part payment, is sufficient. This act on the part of the buyer, if acceded to on the part of the vendor, is sufficient. The same effect is given to the corresponding act by the vendor of delivering part of the goods sold to the buyer, if the buyer shall accept such part and actually receive the same. As part payment, however minute the sum may be, is sufficient, so part delivery, however minute the portion may be, is sufficient. This shows conclusively that the condition imposed was not the complete fulfilment of the contract to the satisfaction of the buyer. In truth, the effect of fulfilling the condition is merely to waive written evidence of the contract, and to allow the contract to be established by parol as before the Statute of Frauds passed. The question may then arise, whether it has been performed either on the one side or the other. The acceptance is to be something which is to precede, or at any rate to be contemporaneous with, the actual receipt of the goods, and is not to be a subsequent act after the goods have been actually received, weighed, measured, or examined. As the act of Parliament expressly makes the acceptance and actual receipt of any part of the goods sold sufficient, it must be open to the buyer to object at all events to the quantity and quality of the residue, and, even where there is a sale by sample, that the residue offered does not correspond with the sample. We are, therefore, of opinion that, whether or not a delivery of the goods sold to a carrier or any agent of the buyer is sufficient, still there may be an acceptance and receipt within the meaning of the act, without the buyer having examined the goods or done any thing to preclude him from contending that they do not correspond with the contract. The acceptance to let in parol evidence of the contract appears to us to be a different acceptance from that which affords conclusive evidence of the contract having been fulfilled. We are, therefore, of opinion in this case that, although the defendant had done nothing which would have precluded him from objecting that the wheat delivered to Edgley was not according to the contract, there was evidence to justify follows, therefore, that no receipt of goods by a carrier or middle-man, on their way to the buyer, is a sufficient acceptthe jury in finding that the defendant accepted and received it." His Lordship then proceeded to examine the cases, and the result of his opinion was "that there may he an acceptance and receipt of goods by a purchaser within the Statute of Frauds, although he has had no opportunity of examining them, and although be has done nothing to preclude himself from objecting that they do not correspond to the contract."
1 Baldey v. Parker, 2 B. & C. 37; Phillips v. Bistolli, 2 B. & C. 511; Smith v. Surman, 9 B. & C. 561; Carter v. Toussaint, 5 B. & Ald. 858; Kent v. Huskinson, 3 B. & P. 233; Hanson v. Armitage, 5 B. & Ald. 557.
1 Marvin v. Wallis, 6 El. &. B. 726; 37 Eng. Law & Eq. 6; Elmore v. Stone, 1 Taunt. 458; Beaumont v. Brengeri, 5 Com. B. 301.
Doubts of the correctness of this rule have been thrown out in later cases in the Exchequer (Castle v. Sworder, 6 H. & N. 828; Coombs v. Bristol & Exeter Railway Co., 3 H. & N. 510; Hunt v. Hecht, 8 Ex. 814), but it seems to be the established doctrine of the Queen's Bench. See Cusack v. Robinson, 1 B. & S. 299; Currie v. Anderson, 2 El. & E. 592. In the latter case, decided in 1860, Crompton, J., said: "Before the case of Morton v. Tibbett, there was authority for saying that there could have been no acceptance and receipt within the Statute of Frauds until the vendee had been placed in such connection with the goods that he could not object to them on account of their quantity and quality; and in that case Lord Campbell says if that is the law it would be decisive against the plaintiff, but after a careful review of the cases the court came to the conclusion (which in this court must be considered to be the law of the land) that in order to make an acceptance and receipt within the Statute of Frauds, it is not necessary that the vendee should have done any thing to preclude himself from objecting to the goods. That was the decision in Morton v. Tibbett; and, from the discussion to-day, I have more reason than ever to be satisfied with it."
The Court of Exchequer adhere to the rule in the earlier cases. In Hunt v. Hecht, supra, Martin, B., said: "In my opinion, an acceptance, to satisfy the statute, must be something more than a mere receipt; it mean3 some act done after the vendee has exercised, or had the means of exercising, his right of rejection." And in Coombs v. Bristol & Exeter Railway Co., supra, Bramwell, B., said that the cases establish that there can be no acceptance where there has been no opportunity for rejecting.