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 See also Gorham v. Fisher, 30 Vt. 428; Atherton v. Newhall, 123 Mass. 141; Knight v. Mann, 118 Mass. 143; Fitzsimmons v. Woodruff, 1 Thomp. & C. (N. Y.) 3.
2 Nicholson v. Bower, 1 El. & E. 172.
3 And see Remick v. Sand ford, 120 Mass. 309; Stone v. Browning, 68 X. Y. 59S; Bacon v. Eccles, 43 Wisc. 227.
4 Morton v. Tibbett, 15 Q. B. 428. See commentary upon it of Aider-son, B., in Hunt v. Hecht, 8 Exch. 814. See also Meyer v. Thompson, 19 Oregon 194.
§ 316 g. Again, after the buyer has come into the possession of the goods, his acceptance of them may be inferred from his continued and unexplained retention of them, though no affirmative act of acceptance or identification appear. Thus, in Coleman v. Gibson, the contract was for the purchase of five distiller's vats, to be made for the buyer. Four of the vats had been made and delivered, the deliveries being a few days apart, when the buyer went to the maker and refused to keep the vats already made, on the ground that they were worthless, or to take the one which was to be made, and the fifth vat accordingly was not delivered. Lord Tenterden, who decided the case, held that it was a question for the jury whether the defendant had within a reasonable time signified to the plaintiff his objection to the goods, as not satisfying the contract; and that if he had not done so, he should be taken to have accepted them.2 The same principle was applied in the case of Bushel v. Wheeler, where the goods were delivered at the place designated by the buyer, who afterward for five months failed to inform the seller whether or not they corresponded to the order; and this was held evidence to go to the jury on the question of acceptance.1 In Norman v. Phillips, in the Exchequer, the following year, where, under nearly similar circumstances, a month had elapsed before the buyer notified the seller, the judge below had directed a verdict for the plaintiff, and the full bench made a rule absolute for a nonsuit; it was admitted that there was some evidence of acceptance that should have gone to the jury, but as, in the opinion of the court, it was not enough by itself to warrant a finding of an acceptance, a new trial was not ordered.2
1 Currie v. Anderson, 2 El. & E. 592; and see Castle v. Sworder, 6 Hurlst. & N. 828, on appeal, opinion of Crompton, J.; also Page v. Morgan, L. R. 15 Q. B. D. 228.
2 Coleman v. Gibson, 1 Moo. & R. 168. See Laner v. Richmond Institution, 8 Utah 305; Small v. Stevens, 65 N. H. 209.
§ 316 h. In this last case the doctrine of a constructive acceptance by the buyer's inaction after taking the goods into his possession received but a grudging assent; yet the doctrine, it seems, ought to stand as law. The law may well say that the buyer, by his silence for an unreasonable time, must be taken to have said to the seller, "I accept the goods;" and that this shall not be allowed to be controverted by the buyer afterward. But inasmuch as the question in all such cases turns upon the inference to be drawn from the facts, it is clear that the facts which tend to negative the inference should be regarded, as well as those which may support it, In the case of Curtis v. Pugh the buyer had ordered three casks of "Cox's Best Glue," and when the casks arrived he took out the contents and stored them in bags, for the purpose, as he alleged, of examination; and not finding them to correspond with the order, he repacked them, and sent them back to the seller, who declined to receive them. It appeared that a sufficiently thorough examination might have been made without entirely unpacking the glue, and also that repacking would, to some extent, injure it. The judge at nisi prius had ruled, that if the defendant had done any act altering the condition of the goods, that would prove an acceptance; but the verdict for the plaintiff was set aside, the court being of the opinion that what was done was not inconsistent with an examination merely for the purpose of ascertaining whether or not the goods answered the orders.l The same doctrine was applied in the case of Parker v. Wallis, where the buyer of certain turnip-seed had taken it out of the sacks and spread it out thin. It was held that, under all the circumstances, the jury would be justified in finding that the handling had not been done as an act of ownership.2
1 Bushel v. Wheeler, 15 Q. B. 442, note; and see Wilcox Silver Plate Co. v. Green, 72 N. Y. 18.
2 Norman v. Phillips, 14 Mees. & W. 277.
§ 316 ft. The same principles apply to those cases where the acts relied on to show acceptance are the dealings of the buyer with the bill of lading, or other indicium of right to possession. The mere fact that such a document was sent by the buyer and received by the seller manifestly affords no ground for inferring an acceptance by the latter of the goods to which it refers.3
§ 317. But in addition to the acceptance, the buyer must have received, and consequently the seller delivered, the goods sold, or a part of them. This again is a question of fact, and in deciding it, the conduct of the seller as well as the buyer must, it is obvious, be considered. Thus it is a well-known rule, and one established by a series of most respectable decisions, that, so long as the seller has not so acted toward the goods as to divest himself of his lien upon them for the price, there has been no receipt under the statute. Under this rule, it will be seen, the conduct of the seller is the chief thing to be considered.4 And as the idea of a lien of the vendor presupposes the passage of the title out of him, - for a man cannot be said to have a lien on his own goods, - it will be seen that, while in the case of acceptance we regard the title, so, in the case of receipt, we must regard the possession, and notice in whom, either actually or constructively, it is.1 And it is generally true that, to constitute the receipt required by the statute, there must be shown a transfer of the possession of the goods by and from the seller to the buyer, either actually by manual delivery, symbolically by some substituted delivery, or constructively by a change in the nature of the seller's subsequent holding.