This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
343; Simmons Co. v. Mullen, 33 Minn. 195; Fontaine v. Bush, 40 Minn. 141; Smith v. Brennan. 62 Mich. 349; Hudson Furniture Co. v. Freed Furniture Co., 36 Pac. Rep. (Utah) 132. But see Liggett v. Collier, 56 N. W. Rep. (Iowa) 417.
§ 328 a. The rule laid down in Morton v. Tibbett, that the act of acceptance and receipt which is to bind the bargain need not be such as to bar the buyer's right to reject the goods afterwards as not being such in quantity or quality as the bargain called for, has been asserted and applied since in the Court of Appeal in the cases of Kibble v. Gough,2 and Page v. Morgan.3 In Kibble v. Gough, the defendant agreed to buy of the plaintiff a quantity of barley (an undressed sample being exhibited at the time) at a named price per quarter, on condition that it should be well dressed. The plaintiff sent in an instalment of the barley, which was received by the defendant's foreman, who examined it and returned a receipt with the words "not equal to sample." The defendant himself examined the barley next morning, and wrote to the plaintiff refusing the barley as being not well dressed. The plaintiff having obtained a verdict for the whole price, and a rule for a new trial on the ground of erroneous direction to the jury that there was evidence on which they might find acceptance and receipt to bind the bargain having been refused, that judgment was affirmed by the Court of Appeal; holding that the examination of the barley to see whether it was well dressed was an act recognizing the contract to take it if it was well dressed. In Page v. Morgan there was a sale of wheat by sample, and the purchaser having received a number of sacks of wheat delivered under the contract into his premises, opened the sacks and examined their contents to see if they were equal to sample, and immediately after so doing gave notice to the seller that he refused the wheat as not being equal to sample. Here also it was held (affirming the refusal of a rule for new trial) that there was evidence for the jury of acceptance and receipt to bind the bargain; the act of examination to see if the goods were according to sample being evidence of acceptance and receipt of the goods as delivered under a contract of purchase and sale.
1 Morton v. Tibbett, 15 Q. B. 428. 2 38 Law Times, N. S. 204. 3 L. R. 15, Q. B. D. 228.
§ 329. It will be observed that the court do not decide in Morton v. Tibbett that the receipt of the goods by a carrier appointed by the buyer is an acceptance and receipt by the buyer himself so as to make the purchase binding on him, and that it is not must now be considered settled both by the cases which preceded and by those which have followed the case now under consideration.1 Lord Campbell simply says that there may be acceptance and receipt of the goods sufficient to satisfy the Statute of Frauds, without the buyer's having precluded himself from "contending that they do not correspond with the contract." The case before him comprised an act on the part of the buyer emphatically and unequivocally asserting his ownership of the wheat, namely, his reselling it at a profit: and the sum of the decision appears to be, that such an act deprives the buyer of that locus penitential which would otherwise be allowed him between the delivery to the carrier and inspection by himself; in the same way as we have before seen that, conversely, acts strongly indicative of receipt will be deprived of their effect if it appear that the seller has not intended to part with his lien upon the goods. The correctness of the decision, therefore, was acknowledged in the subsequent case of Hunt v. Hecht, where the Court of Exchequer, nevertheless, expressed their doubt of much that fell from Lord Campbell, and reasserted the rule, as correctly drawn from the previous authorities.1
1 See § 327 6, supra.
§ 330. The observations of that eminent judge are, however, full of consequence, and demand of us a careful inquiry into the meaning of the rule that the buyer will not be held to have accepted and received goods until he has exercised, or has had an opportunity to exercise, his option to return them. And it seems that the cases commented upon by Lord Campbell do not go so far as to hold - what it would be most difficult, in the face of his reasoning, to hold - that the acceptance by the purchaser must be that final acceptance, which, following upon the receipt and inspection of the goods, "precludes the buyer from contending that they do not correspond with the contract." It is true that the buyer has at common law the privilege, which the Statute of Frauds has not taken away from him, of sending back the goods and resisting suit for the price, if they do not turn out to be what they were represented; and that he retains this privilege even though he has signed a written memorandum of the bargain, and of course as much so if he has done the alternative, accepted and received the goods; consequently, if it is this privilege, the continuance of which the cases in question assert to be incompatible with an acceptance and receipt within the statute, they clearly cannot be law. But in those cases, it is to be observed, the articles were bought by sample, or merely ordered by the buyer, and he had no opportunity of seeing what he had purchased. And the rule which, when the cases are examined by the light of the facts involved, they really lay down, appears to be simply the very reasonable rule, that, where the goods are not specified or ascertained at the time of making the sale, the buyer cannot be said to have accepted them until they have been specified or ascertained, and he has seen them, and has had an opportunity of judging whether they are the goods he purchased.1 Even this privilege he may waive,2 as in the case before Lord Campbell, by a resale of them, or any other act distinctly and unequivocally asserting ownership, himself taking the risk of an error in the quantity or quality; but in the absence of such act concluding him, he seems clearly to retain it. Indeed, it is hard to see how he can accept and receive what he has never seen.3 The distinction suggested is between accepting and receiving the goods as those which he purchased, and accepting them as satisfactory so as to preclude subsequent objection on the ground of concealed defects; and it seems to be well illustrated in the late case, already referred to, of Hunt v. Hecht, in the Court of Exchequer.