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.
2 Reniick v. Sandford, 120 Mass. 309, 316. 3 See Knight v. Mann, 118 Mass. 143.
§ 316 c. The definition above given of acceptance points to a connection existing between it and the passage of the title to the goods, which, as will be hereafter seen, finds its counterpart in a similar connection between the receipt and the right of possession.1 Thus it is now pretty well settled that when, at the time of making the sale, the thing sold is definite and specific, and nothing remains to be done in the way of preparation, or selection from a mass, the same evidence that would prove the making of the sale whereby the title would pass will ordinarily be sufficient to show an acceptance by the buyer such as would satisfy the statute. But if, at the time, the thing to be sold and bought is not defined, or is yet to be completed, or to be selected from a larger lot, or to be compared with a sample shown, there is as yet no acceptance, nor will there be till the selection or the comparison has been made and consented to by the buyer.2 This was clearly brought out in the opinion of the Court of Queen's Bench, delivered by Blackburn, J., a.d. 1861, in the case of Cusack v. Robinson. In that case, the defendant called at the plaintiff's warehouse, and examined a certain lot of butter, and later in the day made a verbal agreement to purchase it at a specified price, and left orders to have it delivered at a designated place. The butter was accordingly delivered as directed, but the defendant declined to keep it, or to pay for it. There was a verdict for plaintiff, with leave to defendant to move for a nonsuit, if the full court should be of opinion that the facts failed to show an acceptance and receipt. Leave was refused. In the argument of counsel for defendant the case of Nicholson v. Bower was cited, but the court distinguished it on the ground that the contract there was not originally a sale of specific wheat, and that the vendees had never agreed to take the particular bushels of wheat which they had received; in other words, that, the goods not being specified at the time of the contract, the buyer had not had even the opportunity of accepting the goods, that is, of acknowledging them as the goods to be his under the contract; whereas, in the case before the court, the goods being a specific lot, it was clear that the acceptance was complete when the bargain was made.1 From this it follows, generally, that in the case of goods not specified at the time of the contract, although they be subsequently selected and even delivered to the buyer, this is not of itself evidence of an acceptance; indeed, as is often the case, they may have been delivered to the buyer for the very purpose of enabling him to say whether he will accept them or not.2
1 See Townsend v. Hargraves, 118 Mass. 325, 333.
2 See Brewster v. Taylor, 63 N. Y. 587; Fitzsimmons v. Woodruff, 1 Thomp. & C. (N. Y.) 3.
§ 316 d. A further illustration of this general doctrine is to be found in cases like that of Maberley v. Sheppard,3 which arose upon a contract for the manufacture and sale of a wagon. The defendant, who had ordered the wagon, had procured a third person to put upon it the iron work and a tilt, while it was still in the plaintiff's yard unfinished. The Court of Common Pleas held, in view of the fact that this wagon was unfinished when the acts relied on as constituting acceptance were done, that they were not evidence of acceptance within the statute; admitting, however, that if, after the wagon was completed and ready for delivery, the defendant had sent a workman of his own to perform additional work upon it, such conduct, as being an admission of ownership, might have amounted to an acceptance.4 Again, in the case of Hunt v. Hecht,6 where defendant agreed to buy a certain quantity of bones of particular kinds, to be picked out from a larger heap, put up in bags furnished by the buyer, and then sent to a designated warehouse, all of which was done; but when the defendant came to inspect the bones, he found they were not what he had ordered, and so declined to keep them; the court held that the evidence showed receipt, but not acceptance, and the grounds for the decision are thus put by Alderson, B.: "If a person agrees to buy a quantity of goods to be taken from the bulk, he does not purchase the particular part bargained for until it is separated from the rest; and he cannot be said to accept that which he knows nothing of, otherwise it would make him the acceptor of whatever the vendor chooses to send him; whereas he has a right to see whether, in his judgment, the goods sent correspond with the order. The statute requires an acceptance and actual receipt of the goods; here there has been a delivery, but no acceptance." 1
1 Cusack v. Robinson, 1 Best & S. 299; and see Cross v. O'Donnell, 44 N. Y. 661.
2 See Knight v. Mann, 118 Mass. 143; Stone v. Browning, 68 N. Y. 598; Simpson v. Krumdick, 28 Minn. 352.
Maberley v. Sheppard, 10 Bing. 99. 5 See Brewster v. Taylor, 63 N. Y. 587. 6 Hunt v. Hecht, 8 Exch. 814.
§ 316 e. That there has been no acceptance may also appear when it is proved that the purchaser, after receipt of the goods, refuses to examine them. In Nicholson v. Bower,2 the buyer of certain goods by sample, being bankrupt at the time of their delivery, declined to compare them with the sample, as he did not desire, in the condition of his affairs, to insist upon the contract, but wished to repudiate it.3
§ 316/. After the buyer has come into possession of the goods, his acceptance of them may be found from the fact of his subsequently so dealing with them as to involve an admission that they are the goods bought by him. Upon this point the leading case is Morton v. Tibbett,4 which may be said to have decided that when the purchaser of goods takes upon himself to exercise a dominion over them, and deals with them in a manner inconsistent with the right of property or the title being in the vendors, that is evidence to justify the jury in finding that the vendee has accepted the goods. The same rule was applied in the case of Currie v. Anderson, the court being of opinion that inasmuch as the buyer had designated as the place of delivery a particular ship, and, after the goods were delivered there, had also given directions to have the bill of lading made out in a particular manner, there was ample evidence that he had dealt with the goods as owner, and consequently had accepted them.1