In general there can be little doubt of the correctness of this last proposition. But it cannot be universally true; for the buyer of goods may sell them before he has had any opportunity of inspecting or even seeing them. And such an act is admitted in Hunt v. Hecht to be evidence of an acceptance within the statute. But so long as the buyer should be unable to examine the goods for any reason not attributable to himself, it is difficult to see how he could "accept" them, though the title to them may have passed to him. Here then are two cases clear of difficulty; first, where the buyer has exercised an act of ownership over the goods, and, secondly, where he has (with the above qualification) had no opportunity to reject them. But the real question has been, Does acceptance within the statute mean any thing short of an act of the buyer so ance,1 unless such a carrier or middle-man be the agent of the vendee, having authority finally to accept them.
It is submitted, then, that since the term "acceptance" does not, within the meaning of the statute, import a binding and conclusive act, it is to be taken in its ordinary sense of a present satisfaction or assent, based upon an inspection more or less full, or upon a failure to object within a reasonable time.
If the above view of the case be correct, the doctrine of the Queen's Bench in Morton v. Tibbett cannot be true, that the acceptance must be before or contemporaneous with the receipt. In using language to this effect, Lord Campbell perhaps had the impression that a subsequent acceptance imported a conclusive fact, which he had already said was not necessary to bring the case within the meaning of the act.
It would seem, then, that acceptance may be before or after receipt of the goods. See, also, Meredith v. Meigh, 2 El. & B. 364, 372, where goods had been ordered to be sent by a common carrier, to whom a bill of lading had been given. This was held no evidence of an acceptance by the buyer. But Coleridge, J., said that if the bill of lading had been received by the latter, the case might have been different.
The earlier cases which had held that acceptance meant an act precluding the purchaser to object to the goods are Hanson v, Armitage, 5 B. & Ald. 557; Howe v. Palmer, 3 B. & Ald. 321. See, also, upon the general question of receipt and acceptance, Astey v. Emery, 4 M. & S. 262; Saunders v. Topp, 4 Ex. 390; Meredith v. Meigh, 2 El. & B. 364, lost, it will be his loss, yet if a time be fixed for payment, this will not take the case out of the statute, inasmuch as the vendor has still a lien, and right of stoppage in transitu. So, also, when no time of payment is fixed, the mere marking and setting aside of the property will constitute no acceptance within the statute.1 Thus, where the defendant gave a verbal order to the agent of the plaintiff, for a quantity of goods, at a stipulated price, to be paid for on delivery, and on receiving notice of the arrival of the goods at the agent's warehouse, went there and ordered a boy to affix marks to them, and to send them to the St. Catherine's docks, and the next day an invoice was delivered to the defendant, charging the articles at 12s. each, upon which he repudiated the whole transaction, and refused to take the goods, it was held that there had been no acceptance within the meaning of the statute.2 But if, by the terms of the sale, it be agreed that the article bought shall be paid for on delivery, the payment of the price, without objection, would show a sufficient delivery within the statute.3
1 Astey v. Emery, 4 M. & S. 264; Hanson v. Armitage, 5 B. & Ald. 559; Howe v. Palmer, 3 B. & Ald. 321; Johnson v. Hodgson, 2 M. & W. 653; Farina v. Home, 16 M. & W. 119; Meredith v. Meigh, 2 El. & B. 364; 22 Eng. Law & Eq. 91; Morgan v. Sykes, 3 Q. B. 486; Morton v. Tibbett, 15 Q. B. 428; Bushel v. Wheeler, lb. 442, note.
§ 1009. With regard to part acceptance, where a sample is delivered to the purchaser, it will be a sufficient acceptance to satisfy the statute, if it be understood by both parties, that the sample forms a part of the whole quantity purchased,1 and not otherwise.2 Where several different articles are purchased at one time, and in the course of one continuous transaction, the contract is to be treated as entire under the statute, as we have seen; and therefore, if any of these articles be received, it will, of course, be considered as a part acceptance of the whole, so as to take the case out of the statute.3 But where an order is given for two distinct articles at the same time, and the order for one is absolute, and for the other is conditional on its proving satisfactory, they will be considered as constituting two distinct contracts, and the acceptance of one will not take the other out of the statute.4
§ 1010. The distinction between a mere delivery and the acceptance required by the statute must be strictly kept in mind.5 A delivery sufficient to vest the title to the property in the vendee will not always be sufficient to deprive the vendor of his lien for the price, nor (if that be important) to deprive the vendee of his right to object to the nature and quality of the goods;6 and therefore there will be no acceptance within the statute. Thus, although, if certain goods be marked, and set aside, in pursuance of the order of the vendee, it will vest a right to the property in him, so that, if they be overruling Hart v. Sattley, 3 Camp. 528; Acebal v. Levy, 10 Bing. 376; Bushel v. Wheeler, 15 Q. B. 442, note; Farina v. Home, 16 M. & W. 119; Tomkinson v. Staight, 17 C. B. 697; Shindler v. Houston, 1 Comst. 261; Frostburg Mining Co. v. New England Glass Co., 9 Cush. 115.
1 Hinde v. Whitehouse, 7 East, .558; Klinitz v. Surry, 5 Esp. 267; Talver v. West, Holt, N. P. 178.
2 Cooper v. Elston, 7 T. R. 14; 1 Bell, Comm. 182; 2 Kent, Comm. 501.
3 Elliott v. Thomas, 3 M. & W. 170, 176; Rohde v. Thwaites, 6 B. & C. 388; Scott v. Eastern Counties Railway Co., 12 M. & W. 33.