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 Curtis v. Pugh, 10 Q. B. 11.
2 Parker v. Wallis, 5 El. & B. 21. And see Remick v. Sandford, 120 Mass. 309.
3 See Quintard v. Bacon, 99 Mass. 185; Farina v. Home, 16 Mees. & W. 119.
4 See Mechanics & Traders' Bk. v. Farmers & Mechanics' Nat Bk., 60 N. Y. 40.
§ 317 a. Where, by the terms of the contract, the sale is to be for cash, or any other condition precedent to the buyer's acquiring title in the goods be imposed, or the goods be, at the time of the alleged receipt, not fitted for delivery according to the contract, or anything remain to be done by the seller to perfect the delivery, such fact will be generally conclusive that there was no receipt by the buyer. There must be first a delivery by the seller, with intent to give possession of the goods to the buyer.2 If, however, the buyer has taken possession, and merely remains under an engagement restricting his use or disposition of the goods until payment of the price, that restriction will not, it seems, be deemed inconsistent with his having received them so as to conclude the contract. In a case in the Queen's Bench, the buyer of some wool had it removed to a warehouse belonging to a third party, but where he was in the habit of collecting his various purchases of wools and having them packed, and there he had the wool in question weighed and packed in his own sheetings, but by the course of dealing he was not to remove it till the price was paid; it was held that there was a sufficient receipt. After remarking that everything was complete but the payment of the price, Lord Denman, C. J., who delivered the opinion of the court, says: "We think that, upon this evidence, the place to which the wools were removed must be considered as the defendant's warehouse, and that he was in actual possession of it there as soon as it was weighed and packed; that it was thenceforward at his risk, and if burnt must have been paid for by him. Consistently with this, however, the plaintiff had, not what is commonly called a lien, determinable on the loss of possession, but a special interest, sometimes, but improperly, called a lien, growing out of his original ownership, independent of the actual possession, and consistent with the property being in the defendant. This he retained in respect of the term agreed on, that the goods should not be removed to their ultimate place of destination before payment."1 In a later case, where the defendant had bargained for a carriage from the plaintiff, and after leaving it for a few days in the plaintiff's shop took it out for a drive, paying for the horse and man, it was held by the Court of Exchequer that there was a receipt of the carriage, and Maule, J., remarked that, "assuming that the man who drove it was the plaintiff's servant, and had directions from the plaintiff to bring back the carriage, still that which passed clearly amounted to an acceptance [receipt] subject to a contract on the defendant's part to send the carriage back to the plaintiff and repledge it for the price."2 Mere retention of possession by the vendor after the property of the goods has passed, and for the purpose of performing some duty in regard to them as the agent of the purchaser and owner, of course does not invalidate the bargain of the parties.3
1 Rodgers v. Jones, 129 Mass. 420. 2 Hinchman v. Lincoln, 124 U. S. 38.
§ 318. The actual receipt of the goods does not necessarily involve manual taking possession of them by the buyer. In many cases this would be impracticable, and no other receipt is required than such as is consistent with the nature, locality, and condition of the goods; though this be merely symbolical, the statute will be satisfied when the case admits of none other. It is, therefore, a general rule in regard to the actual receipt of inaccessible, or ponderous, or bulky articles, that it may be accomplished by the performance of any act which shows that the seller has parted with the right to control the property, and that the purchaser has acquired that right. Thus goods lodged in a warehouse may be transferred symbolically by the delivery of the key.1
1 Dodsley v. Varley, 12 Ad. & E. 634. 2 Beaumont v. Brengeri, 5 C. B. 308. 3 Boynton v. Veazie, 24 Me. 286.
§ 318 a. There remains to be considered the third form of delivery and receipt, often spoken of as "constructive," where, without actual transfer of the goods or their symbol, the conduct of the parties is such as to be inconsistent with any other supposition than that there has been a change in the nature of the holding; that the seller, or his bailee, now holds as the bailee of the buyer, or that the buyer himself, who formerly had goods of the seller in his own possession as bailee, is now permitted by the latter to deal with them as owner. Whether such a change has taken place is a question for the jury on the evidence.
§ 318 b. Where the seller's goods remain in his possession after the sale, the change in the nature of his holding is often to be inferred from his subsequent conduct toward them, as showing that, though still in his hands, they are no longer under his own control, but that he holds as the bailee or agent of the buyer, and subject to his order. Upon this point the case of Elmore v. Stone is instructive, as being a decision which, though somewhat criticised as to the application of the rule to its particular facts, has been abundantly affirmed by subsequent decisions as recognizing the true rule. It was an action to recover the price of two horses alleged to have been sold to the defendant, who, as it appeared in evidence, after concluding the bargain verbally, sent word that " the horses were his, but that, as he had neither servant nor stable, the plaintiff must keep them at livery for him." Accordingly the plaintiff removed the horses from his sale-stable to another, where, it was testified, they thereafter stood at livery. Upon this evidence, the jury found that there had been constructively a receipt of the horses, and Lord Mansfield supported the verdict, on the ground that there was evidence that the seller had consented to keep, and had kept, the horses in the character of a livery-stable keeper; and that, if the jury believed the evidence, they were justified in finding a change in the posesssion, and consequently a constructive receipt.1