4 Price v. Lea, 1 B. & C. 156.
5 See Gibbs v. Benjamin, 45 Vt. 124 (1872).
6 Miles v. Gorton, 2 Cromp. & M. 504; 4 Tyr. 295; Townley v. Crump, 5 Nev. & M. 608; Bloxam v. Sanders, 4 B. & C. 941; Winks v. Hassall, 9 B. & C. 372; Rohde v. Thwaites, 6 B. & C. 388; Tarling v. Baxter, Ib. 360; Baldey v. Parker, 2 B. & C. 37, 44. See post, § 1436.
§ 1011. A merely symbolical transfer of property is sufficient under the statute, when it is intended to give all the possession which is possible, and when the goods are not left in the possession of the vendor. If, therefore, the goods sold be in the docks, the transfer in the dock books with the assent of all parties would be symbolical, and sufficient completely to transfer the possession.4 So, also, the giving of the key of a warehouse, in which the goods lay, would be such a transfer of the possession as to satisfy the statute.1 There may also be a constructive acceptance, as where the lessee of goods becomes the buyer of them.2 But no merely symbolical or constructive delivery will satisfy the statute, unless it be of such a character as unequivocally to place the property within the power and under the exclusive dominion of the buyer.3
1 Carter v. Toussaint, 5 B. & Aid. 858; Howe v. Palmer, 3 B. & Ald. 321; Proctor v. Jones, 2 C. & P. 532; Baldey v. Parker, 2 B. & C. 44; Belcher v. Capper, 5 Scott, N. R. 257, 315; Hunt v. Hecht, 8 Exch. 814; 20 Eng. Law & Eq. 524.
2 Bill v. Bament, 9 M. & W. 40, 41. In this case, Mr. Baron Parke said: "To take the case out of the seventeenth section of the act, there must be both delivery and acceptance; and to constitute a delivery, the possession must have been parted with by the owner so as to deprive him of the right of lien." And see Holmes v. Hoskius, 9 Exch. 753; 28 Eug. Law & Eq. 501; Farina v. Home, 16 M. & W. 119.
3 Aguirre v. Allen, 10 Barb. 74, 76.
4 Shindler v. Houston, 1 Denio, 48; 1 Comst. 261; Harman v. Anderson, 2 Camp. 243. See, also, Farina v. Home, 16 M. & W. 119. See post, p. 298, note 1.
1 Wilkes v. Ferris, 5 Johns. 335; Chappel v. Marvin, 2 Aik. 79.
2 Edan v. Dudfield, 1 Q. B. 302; Taylor v. Wakefield, 6 El. & B. 765; 37 Eng. Law & Eq. 101.
3 Shindler v. Houston, 1 Coinst. 261. In this case Wright, J., delivering the judgment of the Court of Appeals, reversing the judgment of the Supreme Court, thus clearly lays down the rule: "It is to he regretted that the plain meaning of the statute should ever have been departed from, and that any thing short of an actual delivery and acceptance should have been regarded as satisfying its requirements, when the memorandum was omitted; but another rule of interpretation, which admits of a constructive or symbolical delivery, has become too firmly established now to be shaken. The uniform doctrine of the cases, however, has been, that in order to satisfy the statute, there must be something more than mere words, - that the act of accepting and receiving required to dispense with a note in writing, implies more than a simple act of the mind, unless the decision in Elmore v. Stone, 1 Taunt. 458, is an exception. This case, however, will be found upon examination to be in accordance with other cases, although the acts and circumstances relied on to show a delivery and acceptance, were extremely slight and equivocal; and hence the case was doubted in Howe v. Palmer, 3 B. & Aid. 324; and Proctor v. Jones, 2 C. & P. 534, and has been virtually overruled by subsequent decision. Far as the doctrine of constructive delivery has been sometimes carried, I have been unable to find any case that comes up to dispensing with all acts of parties, and rests wholly upon the memory of witnesses as to the precise form of words to show a delivery and receipt of the goods. The learned author of the Commentaries on American Law, cites from the Pandects the doctrine that the consent of the party upon the spot is a sufficient possession of a column of granite, which, by its weight and magnitude, was not susceptible of any other delivery. But so far as this citation may be in opposition to the general current of decisions in the common-law courts of England and of this country, it is sufficient perhaps to observe that the Roman law has nothing in it analogous to our Statute of Frauds. In Elmore v. Stone, expense was incurred by direction of the buyer, and the vendor, at his suggestion, removed the horses out of the sale stable into another, and kept them at livery for him. In Chaplin v. Rogers, 1 East, 192, to which we were referred on the argument, the buyer sold part of the hay, which the purchaser had taken away; thus dealing with it as if it were in his
Where, therefore, a bill of lading or receipt or order is delivered for goods in the possession of a wharfinger or bailee actual possession. In the case of Jewett v. Warren, 12 Mass. 300, to which we were also referred, no question of delivery under the Statute of Frauds arose. The sale was not an absolute one, but a pledge of the property. The cases of Elmore v. Stone and Chaplin v. Rogers are the most barren of acts indicating delivery; but these are not authority for the doctrine that words, unaccompanied by acts of the parties, are sufficient to satisfy the statute. Indeed, if any case could be shown which proceeds to that extent, and this court should be inclined to follow it, for all beneficial purposes the law might as well be stricken from our statute-book; for it was this species of evidence, so vague and unsatisfactory, and so fruitful of frauds and perjuries, that the legislature aimed to repudiate. So far as I have been able to look into the numerous cases that have arisen under the statute, the controlling principle to be deduced from them is, that when the memorandum is dispensed with, the statute is not satisfied with any thing but unequivocal acts of the parties; not mere words that are liable to be misunderstood and misconstrued, and dwell only in the imperfect memory of witnesses. The question has been, not whether the words used were sufficiently strong to express the intent of the parties, but whether the acts connected with them, both of seller and buyer, were equivocal or unequivocal. The best considered cases hold that there must be a vesting of the possession of the goods in the vendee, as absolute owner, discharged of all lien for the price on the part of the vendor, and an ultimate acceptance and receiving of the property by the vendee, so unequivocal that he shall have precluded himself from taking any objection to the quantum or quality of the goods sold. But will proof of words alone show a delivery and acceptance from which consequences like these may be reasonably inferred ? Especially, if those words relate not to the question of delivery and acceptance, but to the contract itself? A. and B. verbally contract for the sale of chattels for ready money, and without the payment of any part thereof, A. says, 'I deliver the property to you,' or 'It is yours,' but there are no acts showing a change of possession, or from which the facts maybe inferred. B. refuses payment. Is the right of the vendor, to retain possession as a lien for the price, gone ? Or, in the event of a subsequent discovery of a defect in the quantum or quality of the goods, has B., in the absence of all acts on his part showing an ultimate acceptance of the possession, concluded himself from taking any objection? I think not. As Justice Cowen remarks, in the case of Artcher v. Zeh, 5 Hill, 205, ' One object of the statute was to prevent perjury. The method taken was to have something done; not to rest every thing on mere oral agreement.' The acts of the parties must be of such a character as unequivocally to place the property within the power and under the exclusive dominion of the buyer. This is the doctrine of those cases that have carried the principle of constructive delivery to the utmost limit." of any kind, it is held in the late cases that there must be an agreement by the party having custody of the property, to hold it for the party receiving the bill of lading or order, and that the mere indorsement of it to the buyer is not enough.1 But if the goods be put into the hands of a third person, as the bailee of the purchaser, it will be a sufficient delivery to satisfy the requisition of the statute. Thus, where wool was bargained for, and it was agreed that the buyer should remove it to the warehouse of a third person, in which he was accustomed to store his goods thus bought, and that it should be weighed and packed, and remain there until paid for, and the wool was accordingly removed, weighed, and packed, it was held that the vendor had no lien, but only a special interest; that the goods were in the vendee's possession, the warehouse being constructively his own warehouse; and that, therefore, they were sufficiently accepted within the meaning of the statute.2 The mere payment of warehouse rent by the vendee is not, however, in itself, sufficient proof of such an acceptance as that required by the statute.3 So, also, if a person proposing to buy goods take them into his possession merely for the purpose of examination, or accept them on condition that he may return them if they do not suit him, there is not a sufficient acceptance under the statute.1 And the using of a small quantity of an article, taken on such condition, for the purpose of experiment, does not alter the case, and constitute a sufficient acceptance.2