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.
1 Hunt v. Hecht, 8 Exch. 814. See Coombs v. Bristol & Exeter Railway Co., 3 Hurlst. & N. 510; Simpson v. Krumdick, 28 Minn. 352; Roman v. Bressler, 32 Neb. 240.
§ 331. In that case, one of the defendants, who were partners, called upon the plaintiff, a bone merchant, for the purpose of buying bones. He there saw a heap containing a quantity of the kind he desired to buy, but intermixed with others which were unfit for manufacturing purposes. He ultimately agreed with the plaintiff to buy the heap if the objectionable bones were taken out. It was arranged between the parties that the plaintiff should deliver the bones at a certain quay in sacks marked in a particular way, and the defendants then sent to the wharfingers an order to receive the bones and ship them by a certain lighter, the order containing a memorandum that the wharf charges were to be paid by them, the defendants. The bags, marked as requested, were received by the wharfingers on the day named, but the defendants did not hear of their being sent until the following day, when the invoice was received. They then examined the bones, and wrote to the plaintiff complaining of their quality and declining to accept them. The jury found that the plaintiff had sent the bones of the description agreed upon; but the judge (Martin, B.) ruled at the trial that there was no acceptance within the seventeenth section, and nonsuited the plaintiff. A rule having been obtained to set aside the nonsuit, and enter a verdict for the plaintiff, the court on hearing discharged the rule. Pollock, C. B., said: " I am of opinion on the facts that the nonsuit was right. The goods were received by the person appointed by the defendants, but they were not at any time accepted. The defendants never saw them when they were in a state to be accepted, because they had not been separated. A man does not accept flour by looking at the wheat that is to be ground." And Martin, B., said: "The contract was for such bones in the heap as were ordinarily merchantable, and they were only bound to accept such merchantable bones. Directions were no doubt given to the wharfinger to receive the bones, and in one sense they were received, but this was not an acceptance within the statute. There is no acceptance unless the purchaser has exercised his option, or has done something that has deprived him of his option."1
1 Remick v. Sandford, 120 Mass. 309; Stone v. Browning, 51 N. Y. 211.
2 Mason v. Whitbeck Co., 35 Wisc. 164. 3 See post, § 336.
§ 332. As was before remarked, however, there may be an act done by the buyer, pending this option, so decisive of an intention to be bound by the contract, as to debar him from the exercise of the option and to control the inference of non-acceptance arising from his not having exercised it; as, for instance, reselling the goods for his own profit. The execution of a written memorandum in the interim would also certainly be such an act. On this ground, it was said by Coleridge, J., in Bushel v. Wheeler, that it was not a fair test that the buyer could not be held to have accepted the goods so long as the seller's right to stop them in transitu remained.1
1 Hunt v. Hecht, 22 L. J. Exch. 293. See also what was said by Bol-land, B., in Jordan v. Norton, 4 Mees. & W. 155; also Gorham v. Fisher, 30 Vt. 428; Taylor v. Mueller, 30 Minn. 343.
§ 333. But the locus penitentice of the buyer remains only until he has exercised his option, or done something to deprive himself of it. He may deprive himself of it, not only by an unequivocal and conclusive course of conduct affirming the contract, but also by an unreasonable detention of the goods after they have come under his control; what amounts to such a detention being, in each case, and in view of all the circumstances, a question for the jury.2 Such appears to be the clear effect of the modern decisions, though the rule is applied with much caution. In Bushel v. Wheeler, to which frequent reference has been made, the buyer designated the vessel for the carriage of the goods, which on their arrival were placed in a warehouse belonging to the owner of the vessel, and the buyer saw them there, and said to the warehouseman that he should not take them, but did not communicate this refusal to the seller till the end of Jive months. The court held that the learned judge who tried the case had done wrong in instructing the jury that there had been no acceptance, and should have left that question to them upon the facts in the case.3 In Norman v. Phillips, the goods were sent by a particular road to a particular station, as had been the course of dealing between the parties, and, on being, informed by the railway clerk of their arrival, the buyer stated to him that he would not take them; but si. weeks elapsed before he communicated this refusal to the seller. The Court of Exchequer held that, after the decision in Bushel v. Wheeler, it was impossible to say that there was not a scintilla of evidence of acceptance to go to the jury, but that there was not enough to sustain the verdict for the plaintiff below, which they accordingly set aside.1 Whether the pertinency of such detention to the question of acceptance arises from the buyer's being, so to speak, estopped by it, or from its going to show that the carrier was really intended by the buyer to be his agent for accepting and receiving the goods, is a matter upon which the decisions are not clear. Lord Campbell, in Meredith v. Meigh, seems to put it on the latter ground.2
1 Bushel v. Wheeler, 15 Q. B. 442, note. See Borrowscale v. Bosworth, 99 Mass. 378.
2 Coleman v. Gibson, 1 Moo. & R. 168; Percival v. Blake, 2 Carr. & P. 514; Curtis v. Pugh, 10 Q. B. 1ll; Bushel v. Wheeler, 15 Q. B. 442, note; Meredith v. Meigh, 2 El. & B. 364; Cunliffe v. Harrison, 6 Exch. 003; Baylies v. Lundy, 4 L. T. N. S. 176; Cusack v. Robinson, 1 Best & S. 299; Castle v. Sworder, 6 Hurlst. & N. 828; Borrowscale v. Bosworth, 99 Mass. 378; Spencer v. Hale, 30 Vt. 314. See, however, Nicholle v. Plume, 1 Carr. & P. 272.