1 Wilkes v. Ferris, 5 Johns. (N. Y.) 335; Chappel v. Marvin, 2 Aik. (Vt.) 79.

§ 319. The same doctrine applies where the property is not in the manual possession either of the seller or his bailee, but is upon the premises of some third person, though subject to the control of the seller. Here again the evidence may afford sufficient ground for a finding that the possession and control have been transferred constructively, if not actually, to the buyer.2 In the case of Shindler v. Houston, in the Supreme Court of New York, the proof showed a sale by the plaintiff to the defendant of a quantity of lumber, which was piled apart from other lumber on a dock, and had been previously measured and inspected, and was in the view of the parties at the time of the bargain. The defendant offered a certain price per foot, which the plaintiff accepted, saying, "The lumber is yours." The defendant then told the plaintiff to get the inspector's bill of the lumber and take it to the defendant's agent, who would pay the amount. This was soon after done, but payment was refused. In the Supreme Court it was held that the ease had been properly submitted to the jury on their verdict on the question of acceptance and receipt. Jewett, J., pronounced judgment, saying that "delivery in a sale may be either real, by putting the thing sold into the possession or under the power of the purchaser, or it may be symbolical [or constructive], when the thing does not admit of actual delivery; and such delivery is sufficient, and equivalent in its legal effects to actual delivery. It must be such as the nature of the case admits."1 The Court of Appeals reversed this decision,2 not objecting to the principle, but to its application, and basing its opinion upon the important feature in the case that what was relied upon as evidence of acceptance and receipt was in reality the acts and declarations of the parties during and as a part of the negotiation, not such subsequent acts and declarations as would constitute the open recognition and admission of an existing contract, as the law requires.

1 Elmore v. Stone, 1 Taunt. 457. See Marsh v. Rouse, 44 X. Y. 643; Castle v. Sworder, 6 Hurlst. & N. 828; Cusack v. Robinson. 1 Best & S. 299; Marvin v. Wallis, 6 El. & B. 726; Beaumont v. Brengeri, 5 C. B. 301; Chaplin v. Rogers, 1 East, 192; Green v. Merriam, 28 Vt. 801; Safford v McDonough, 120 Mass. 290; Knight v. Mann, 118 Mass. 143; Brown v. Hall, 5 Lans. (N. Y) 177; Janvrin v. Maxwell, 23 Wisc. 51. But see Phillips v. Hunnewell, 4 Greenl. (Me.) 376. As has been noted above, § 317 a, the circumstance that the sale was for cash, and that consequently the vendor had the right to withhold delivery till the price was paid, is to be borne in mind, in considering the inference to be drawn by the jury from his conduct with regard to the goods; the inference of a delivery, of course, excluding his lien. See Tempest v. Fitzgerald. 3 Barn. & Ald. 680; Carter v. Toussaint, 5 Barn. & Ald. 855; Clark v. Labreche, 63 N. H. 397; Shepherd v. Pressey, 32 N. H. 49; Reinhart v. Gregg, 8 Wash. 191; Speir v. Bach. 82 Wisc. 192.

2 Calkins v. Lockwood, 17 Conn. 174; Boynton v. Veazie. 24 Me. 286; Leonard p. Davis. 1 Black (U. S.) 476. See Jewett v. Warren, 12 Mass. 300; Tansley v. Turner, 2 Bing. N. R. 151; Cooper v. Bill, 3 Hurlat. & C. 722; Smith v. Fisher, 59 Vt. 53.

§ 319 a. When the goods at the time of sale are in the hands of a bailee who holds them for the seller, it has generally been held essential to the proof of a constructive delivery to and receipt by the buyer, to show not only a giving up of his control by the seller, but a communication of this to the bailee, and his assent to it and attornment to the buyer; the change in the nature of the holding being thus clearly established. This is well illustrated by the case of Bentall v. Burn, decided in the King's Bench in 1824. It appeared that the plaintiff had sold the defendant a hogshead of wine, which, at the time of the sale, was lying in the London Docks warehouse, and gave him a delivery order for it upon the warehouseman. This, it was held, did not amount to receipt of the goods by the buyer, until the order had been presented, and the dock company had, by accepting it, assented to hold as agents of the vendee.1 In Simmonds v. Humble, the same rule was applied, though in that case the bailee of the goods was also the factor of the seller, and in that capacity made the sale himself to the buyer. In the words of Byles, J., "Here was a verbal contract made by the bailee of the hops. The moment that contract was complete, the bailee became the bailee of the buyers. No objection, therefore, could be taken to the want of a sufficient receipt." 2

1 Shmdler v. Houston, 1 Denio 52. See Hallenbeck v. Cochran, 20 Hun (N. Y.) 416.

2 1 Comst. 261. The dicta in the opinions, seeming to attribute some superior weight or competence upon the question of acceptance and receipt to proof of what the parties did, as distinguished from what they said, are neither in accordance with authority, nor. it seems, with a sound view of the object and nature of the statutory provision. The subject is discussed in § 320, post. See Smith v. Evans, 36 S. C. 69.

§ 319 b. The evidence may also show a constructive delivery to, and receipt by, the buyer of goods, which were already in his hands at the time of making the contract. This rule was applied in a case of some delicacy in the Queen's Bench, where the goods in question, then belonging to the plaintiff, were already in the hands of the defendant, as agent for their sale. The defendant told the plaintiff that he would take them himself at a price then named, and afterward sold them to a third party, and in a written account-current delivered to the plaintiff debited himself with the price of the goods as sold. This was held proper evidence to go to the jury, and to warrant their finding a constructive delivery and receipt by the buyer.1