1 Ante, § 790; Maberley v. Sheppard, 3 M. & S. 442; 8. c. 10 Bing. 99; Baldey v. Parker, 2 B. & C. 44; Phillips v. Bistolli, 2 B. & C. 513; Miles v. Gorton, 2 C. & M. 504; Morton v. Tibbett, 15 Q. B. 428; Hunt v. Hecht, 8 Exch. 814; 20 Eng. Law & Eq. 524; Smith v. Surman, 9B.&C. 561; Norman v. Phillips, 14 M. & W. 277; Howe v. Palmer, 3 B. & Ald. 321; Hanson v. Armitage, 5 B. & Ald. 557; Acebal v. Levy, 10 Bing. 376; Cunliffe v. Harrison, 6 Exch. 903; Curtis v. Pugh, 10 Q. B. 111; Shepherd v. Pressey, 32 N. H. 49; Outwater v. Dodge, 6 Wend. 397; Shindler v. Houston, 1 Denio, 48.
2 If previously accepted by the buyer, a delivery to a carrier may be sufficient. Cross v. O'Donnell, 44 N. Y. 661 (1871), distinguishing the cases on this point.
3 Bushel v. Wheeler, 15 Q. B. 442, n.; Snow v. Warner, 10 Met. 132; Jones v. Mechanics' Bank, 29 Md. 287; Rodgers v. Phillips, 40 N. Y. 519; Castle v. Sworder, 5H.&N. 281; ante, § 1008. See Johnson v. Cuttle, 105 Mass. 447 (1870), holding that the mere relatjon of carrier does not constitute the party an agent to accept the goods. Frostburg Mining Co. v. New England Glass Co., 9 Cush. 115; Boardman v. Spooner, 13 Allen, 353; Quintard v. Bacon, 99 Mass. 185; Norman v. Phillips, 14 M. & W. 277; Nicholson v. Bower, 1 El. & E. 172.
4 Carter v. Toussaint, 5 B. & Ald. 858; Bill v. Bament, 9 M. & W. 40; Kent v. Huskinson, 3 Bos. & Pul. 233; Belcher 9. Capper, 5 Scott, N. R. 315. See ante, § 1010.
5 Hollingsworth v. Napier, 3 Caines, 185; Dodsley v. Varley, 12 Ad. & El. 634; Wilkes v. Ferris, 5 Johns. 335. If goods sold are in a third person's warehouse, the mere acceptance by the vendee of an invoice of them, and an order on the warehouse man for the goods is not an acceptlong as he holds them for the purposes of examination, and to determine as to their quantity and quality, there is, according to the better opinion,1 no such acceptance as is required by the statute.2
§ 1459. In respect to a part acceptance, the receiving and accepting of a sample is not sufficient to satisfy the statute, unless the sample is understood by both parties to be a part of the whole quantity purchased.3 Mere delivery to the buyer of the samples by which a sale is effected, without any examination or view of the bulk, is not an acceptance within the Statute of Frauds;4 but if the buyer draw samples from the bulk after the purchase, it has been held otherwise.5 Where several articles are purchased together at one time, forming one transaction, the contract will be treated as entire, so that an acceptance of any of the articles is an acceptance of the whole within the meaning of the statute.6 But if there be a different contract for two different articles, as if the sale be conditional in respect to some and absolute in respect to others, the acceptance of one is not an acceptance of the other.7
§ 1460. The second exception relates to the giving of earnest money, or part payment, to bind the bargain. In this respect, the rule is that there should be an actual payment of some portion of the price, although it may be very small. But the mere act of ratification, such as drawing a shilling ance of the goods, without some notice to the warehouseman, or any actual receipt of any part of the goods. Boardman v. Spooner, 13 Allen, 353 (1866).
1 Ante, § 1008 and note.
2 Percival v. Blake, 2 C. & P. 514; Phillips v. Bistolli, 2 B. & C. 511; Kent v. Huskinson, 3 Bos. & Pul. 233.
3 Hinde v. Whitehouse, 7 East, 558; Cooper v. Elston, 7 T. R. 14; Klinitz v. Surry, 5 Esp. 767. As to acceptance of part, see Kershaw v. Ogden, 3 H. & C. 717; Turley v. Bates, 2 Id. 200.
4 Simonds v. Fisher, Q. B. (1857), cited in 2 C. B. (n. s.) 342.
5 Gardner v. Grout, 2 C. B. (N. S.) 340 (1857).
6 Elliott v. Thomas, 3 M. & W. 176; Rohde v. Thwaites, 6 B. & C. 388; Scott v. Eastern Counties Railway Co., 12 M. & W. 38; Gilman v. Hill, 36 N. H. 311. See, also, ante, § 791, § 34 et seq.
7 Miles v. Gorton, 2 C & M. 504. See other cases cited ante, § 1008.
§ 1461. Executory contracts for the delivery of goods existing at the time of the sale are within the contract of frauds,4 but executory contracts for the manufacturing of articles not in existence, or for the delivery of articles after certain work and labor has been performed on them, are not, in some States, within the statute.5 In such cases of executory contracts, the question whether they are within the statute depends upon whether they are merely contracts of sale or for labor and services; but this distinction is often very nice and difficult of practical application.6 According to some cases, it seems that though the contract be for an article to be manufactured, yet if the seller be not the manufacturer, but intend to have it made, and agree to deliver it at a future day, the contract is one of sale, and within the statute.7 So, also, in certain cases, although the
1 Blenkinsop v. Clayton, 7 Taunt. 597. See ante, § 788.
2 Edgerton v. Hodge, 41 Vt. 676 (1869).
3 Walker v. Nussey, 16 M. & W. 302. See Mattice v. Allen, 3 Keyes, 492; 3 Abb. Ct. App. Dec. 248 (1867).
4 Edwards v. Grand Trunk Railway Co., 48 Me. 379.
5 Rondeau v. Wyatt, 2 H. Black. 63; Hight v. Ripley, 19 Me. 137; Robertson v. Vaughn, 5 Sandf. 1; Cummings v. Dennett, 26 Me. 397; Bron-son v. Wiman, 10 Barb. 406; Sewall v. Fitch, 8 Cowen, 215. See, also, ante, § 787, and cases cited; Crookshank v. Burrell, 18 Johns. 58; Watts v. Friend, 10 B. & C. 446; Mixer v. Howarth, 21 Pick. 205; Eichelberger v. McCauley, 5 H. & J. 213; Rentch v. Long, 27 Md. 188; Abbott v. Gilchrist, 38 Me. 260.
6 See Pitkin v. Noyes, 48 N. H. 294 (1869).
7 Garbutt v. Watson, 5 B. & Ald. 613; Lamb v. Crafts, 12 Met. 356; West Middlesex Water Works Co. v. Suwerkropp, M. & M. 408; s. c. 4 seller be the manufacturer, yet if the contract be to sell and deliver at a future day goods not in existence, but which the seller is in the habit of manufacturing, and not a contract to manufacture them, it has been held to be within the statute.1 In some cases the test is held to be whether the goods to be delivered exist in solido at the time of the agreement.2 The criterion recently adopted in England is this: Is the effect of the contract to transfer the title of an article to a person who before had no ownership of it ? If it is, the transaction is a contract of sale; if otherwise, it is not.3