3 Bushel v. Wheeler, 15 Q. B. 442, note.

§ 334. The statute requires proof of acceptance and actual receipt of a part only of the goods, and whether it be a small part or a large part is immaterial.3 It may be satisfied by the delivery and acceptance of a sample; provided that such sample is, by the terms and conditions of the sale, to be treated as forming a part of the goods, which has been sold and delivered and accepted; as, for instance, when the amount of the sample would be allowed for in ascertaining the total of the amount delivered.4 But where from the circumstances of the bargain, it appears that the taking of samples was a mere act of examination, and that what was so taken was not taken as a symbolical acceptance and receipt of any part of the goods bargained for, it would not satisfy the statute.6

1 Norman v. Phillips, 14 Mees & W. 277.

2 Meredith v. Meigh, 2 El. & B. 364.

3 Garfield v. Paris, 96 U. S. 557; Gilbert v. Lichtenberg, 98 Mich. 417.

4 Talver v. West, Holt, 178; Hinde v. Whitehouse, 7 East, 558; Klinitz p. Surry, 5 Esp. 267; Gardner v. Grout. 2 C. B. N. S. 340. And see Smith v. Milliken, 7 Lans. (N. Y.) 336; Brock v. Knower, 37 Hun (X. Y.) 609.

5 Carver v. Lane, 4 E. D. Sm. (N. Y.) 168; Galvin v. MacKenzie, 21 Oregon 184.

§ 334 a. And since the language of the statute refers to the acceptance and receipt of a part of the goods "so sold," it is essential that the proof should show acceptance and receipt such as afford evidence of recognition by the parties of the contract sued upon, and of acts done under and in pursuance of that contract. Thus in a case in Massachusetts, the defendant made a contract on a Saturday for so much leather, out of a lot of about eight hundred sides, as was "light weight " leather. After he had left, the plaintiff, the seller, picked out the "light weight" leather, rolled it up and set it aside, and a part, six rolls out of forty-four, was that afternoon taken by an expressman to the town where the buyer lived. The same night the rest of the leather was burned up. On the Monday following, the buyer came to the seller's store, produced the bill for the whole lot, and requested the seller's book-keeper to take off from it so much as had not been delivered, which was done. The price of the amount delivered was subsequently tendered and refused. In an action brought for the whole price, the seller was allowed to recover only for the part delivered, and it was further held that "the acceptance by the buyer on Monday of the part brought by the expressman, was not a sufficient acceptance to take the sale of the whole out of the statute, because it appears that it was not with an intention to perform the whole contract and to assert the buyer's ownership under it, but on the contrary, that he immediately informed the seller's clerk that he would be responsible only for the part received." 1

§ 334 b. In a case where the sale of goods together with other matters, such as the performance of services, constitute one indivisible contract, it will not be sufficient that the services have been performed, and the benefit of them accepted and received.2

1 Atherton v. Newhall, 123 Mass. 141. See Davis v. Eastman, 1 Allen (Mass.) 422; Hausman v. Nye, 62 Ind. 485.

2 Harman v. Reeve, 18 C. B. 587.

§ 335. In considering the question, when the price of the goods sold is to be held to amount to the sum fixed by the statute, we saw that the prices of a number of articles, each less than that sum, but in the aggregate exceeding it, were to be taken together, so as to bring the contract within the statute, if the purchases were all made at the same time, or so connected as to show the transaction to be one and the same. And in like manner, the acceptance and receipt of one, or part of one, of such parcels in a combined purchase is sufficient to perfect the contract as to the whole. It may often be a matter of some difficulty to determine whether the transaction was one and the same. In the common case of a number of articles purchased at private sale, of a shopman for instance, at the same time though at separate prices, it is clear that the aggregate is generally to be taken as the purchase.1 As to the aggregate of various purchases made by a party in the course of an auction, there is a difference of opinion. The English cases hold that the purchases so made are to be regarded as separate and distinct;2 in this country, however, the same rule is applied as in the case of purchases at a store, even though the auction sale continue more than one day.3 The same rule (regarding the purchases in the aggregate) was also applied by an English court, in a case where the parties had met by appointment for the purchase of timber, and had proceeded together to several places some miles apart, making bargains for timber at each place at separate prices, but all on the same day.1 In many cases presenting this general question, there will be found some evidence, such as the fact of a memorandum or bill of the whole made out and presented, and assented to by the buyer tending to show that the parties regarded the transaction as one and entire. Perhaps as safe a general test as any will be to see whether either party can be made to take or part with any less than the whole lot. Where the defendant gave the plaintiff's travelling agent a positive order for a quantity of cream of tartar, and offered to take a quantity of lac dye at a certain price, which the agent said was too low, but agreed to write to his principals, and that if the defendant did not hear from them in one or two days he might consider that his offer was accepted, and the principals never wrote to the defendant, but sent all the goods; it was held by the Court of Queen's Bench that this was not a joint order for them all, so as to make the acceptance of the cream of tartar the acceptance of the lac dye also, and render the defendant liable for refusing to accept the latter.2