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 Field v. Runk, 22 N. J. L. 525.
2 Smith v. Milliken, 7 Lans. (N. Y.) 336. See Wilkinson's Administrator v. Wilkinson, 61 Vt. 409.
3 Walker v. Nussey, 16 Mees. & W. 302; Field v. Runk, 22 N. J. L. 525; McKnight v. Dunlop, 5 N. Y. 537; Davis v. Moore, 13 Me. 424: Sprague v. Blake, 20 Wend. (N. Y.) 61; Buckingham v. Osborne, 44 Conn. 133. See Whitwell v. Wyer, 11 Mass. 6; Damon v. Osborne, 1 Pick. (Mass.) 476; Dehority v. Paxson, 97 Ind. 253; Ortloff v. Klitzke, 43 Minn. 154; Coffin v. Bradbury, 35 Pac. Rep. (Idaho) 715.
§ 338. The acceptance and the receipt may take place at different times, and either may precede or follow the other. In the case of a sale of specific ascertained chattels, the acceptance is generally shown at the time when the sale is made, while the delivery and receipt is often at some subsequent time. On the other hand, in the case of goods not ascertained at the time of sale, but subsequently selected or finished by the seller and forwarded to the buyer, the latter's acceptance is usually made after the goods are thus delivered to and received by him.2 It was suggested by Chief Justice Tindal on one occasion, that acceptance and receipt after action brought might be sufficient.3 He had no occasion to decide the point, however, and it is quite clear by the authorities, upon an analogous question in regard to the written memorandum,4 as well as upon the language of the section, that such an acceptance and receipt would not answer. Should the plaintiff sue upon a contract within the statute, and the defendant choose to avail himself of that defence, this would obviously bar the plaintiff's right of action, and subsequent acceptance and receipt would not be material.
§ 339. It is a very material question, what is the date of the contract, when a verbal agreement is thus made perfect by a subsequent acceptance and receipt; the date of the acceptance and receipt, or that of the original agreement, both of which go to compose the complete and binding contract? On the one hand, we may say, the terms of the contract are in the first instance agreed upon, and would be binding but for a difficulty which the subsequent acceptance removes, and thus establishes the contract ab initio; on the other hand, we may say, the acceptance is all that gives the parties any rights, and it does so by drawing to itself the original agreement, which then, and of that date, becomes binding in law. Suppose a damage occur to the goods in the meanwhile, shall the purchaser pay the full value? It will be seen that this question is one of a class, the treatment of which involves a full discussion of the effect of the Statute of Frauds upon the nature and validity of the oral contract, for which the reader is referred to a previous chapter.1
1 Marsh v. Hyde, 3 Gray 331. See Townsend v. Hargraves, 118 Mass. 336; also Sale v. Darragh, 2 Hilton (N. Y.) 184; Chapin v. Potter, 1 Hilton (N. Y.) 366. But that the acceptance and receipt should be before action brought, see the next section.
2 Garfield v. Paris, 96 U. S. 557; Cusack v. Robinson, 1 Best & S. 299; Jamison v. Simon, 68 Cal. 17.
3 Fricker v. Thomlinson, 1 Man. & G. 772. 4 Post, § 352 a.
§ 340. It is hardly necessary to remark, in conclusion of this part of our subject, that an acceptance or receipt once intelligently made cannot be afterward revoked, and its effect avoided.2
1 Chapter VIII (Verbal Contracts, How Par Valid)., §§ 138 d-138 j.
2 Jackson v. Watts, 1 McCord (S. C.) Law 288. See Buckingham v. Osborne, 44 Conn. 133.