1 Bentall v. Burn, 3 Bam. & C. 423.

2 Simmonds v. Humble, 13 C. B. n. s. 262. See also Farina v. Home, 16 Mees. & W. 119; Godts v. Rose, 17 C. B. 229; Boardman v. Spooner, 13 Allen (Mass.) 353; Cushing v Breed. 14 Allen (Mass.) 376; Townsend v. Hargraves, 118 Mass. 325; Zachrisson v. Pope, 3 Bosw. (N. Y.) 171; Wilkes v. Ferris, 5 Johns. (N. Y.) 335; Franklin v. Long, 7 Gill & J. (Md.) 407; Williams v. Evans, 39 Mo. 201; Bass v. Walsh, 39 Mo. 192; Hankins v. Baker, 46 N. Y. 666; Somers v. McLauglilin, 57 Wisc. 358. The subject of the delivery of warehouse receipts, etc., is discussed at length in Burton v. Curvea, 40 111. 320. See also Bassett v. Camp, 54 Vt. 232; Hinchman v. Lincoln, 124 U. S. 38.

§ 320. Coming now to the question of the general character of evidence necessary to establish acceptance and receipt, it is important to notice at the outset the view, sometimes advanced, that "mere words" cannot of themselves furnish sufficient evidence of either acceptance or receipt. This statement has been especially made in opinions of the courts of New York, although the decisions of that State show that it has not yet become recognized or adopted as the law. In a case previously noted,2 the decision turned upon the fact that, in the opinion of the Court of Appeals, the language used by the parties in making their contract had been allowed to go to the jury as evidence of a delivery and receipt of the goods in recognition and fulfilment of it. But from the language of Wright, J., in the case, it will be seen that he is of the further opinion that even the declarations of the parties, subsequently made, are not evidence of receipt. He says: "Far as the doctrine of constructive delivery has been sometimes carried, I have been unable to find any case that comes up to dispensing with all acts of parties, and rests wholly upon the memory of witnesses as to the precise form of words to show a delivery and receipt of the goods." This statement asserts a difference between the testimony of witnesses as to what the parties did and what they said, for the purpose of proving the acceptance and receipt, and to give full credence to the former while rejecting the latter. But is it true that, either as matter of authority or upon principle, any such difference does or should exist? Under the provisions of the statute, the contract may be fully proved and enforced, and the "prevention of frauds and perjuries" be sufficiently accomplished, though not a line of writing be produced or sworn to. Every term and condition of the contract, to quote Justice White, frequently "rests wholly upon the memory of witnesses as to the precise form of words" used. There are the questions of fact for the jury, - "What was the contract?" "Did the buyer accept or identify and recognize the goods as those to be his under it?" and, lastly, "Did the seller part with, and the buyer receive, possession and control of them?" It will be seen that, while these facts must be proved, nothing is said as to the method of proving them; that is left to be governed by the rules of evidence which concern the proof of all facts in courts of law. In short, that part of the seventeenth section which mentions acceptance and receipt relates to the proof of facts additional to the making of the bargain, not to new ways of proving them.l

1 Edan v. Dudfield, 1 Q B. 302. See Lillywhite v. Devereux, 15Mees. & W. 285; Snider v. Thrall, 56 Wisc. 674; Dorsey v. Pike, 50 Hun (N. Y.) 534.

2 Shindler v. Houston, 1 N. Y. 268; ante, § 319.

§ 321. The facts of acceptance and receipt being questions for the jury,2 circumstances of the slightest probative force may properly be submitted to them for that purpose. But it is for the court to withhold the facts from the jury when they are not such as can in law warrant finding an acceptance and an actual receipt; and this includes cases where, though the court might admit there was a scintilla of evidence tending to show the acceptance and receipt, they would still feel bound to set aside a verdict in which they were found upon that evidence.1

1 An examination of the cases will show that evidence has uniformly been received, even in New York, of the conduct of the parties, i. e., what they did and said, without in any way discriminating between acts of doing, and acts of saying. See Stanton v. Small, 3 Sandf. (N. Y.) 230; Calkins v. Lockwood, 17 Conn. 174; Wylie v. Kelly, 41 Barb. (N. Y.) 594; Green v. Merriam, 28 Vt. 801; Gray v. Payne, 16 Barb. (N. Y.) 277; Bass v. Walsh, 39 Mo. 192; Garfield v. Paris, 96 U. S. 557; Cusack v. Robinson, 1 Best & S.299; Tomkinson v. Staight, 17 C. B. 245; Marvin v. Wallis, 6 El. & B. 726. In Walker v. Nussey, 16 Mees. & W. 302, it was held that an oral agreement to set off from the contract price of the goods the amount of a debt already owing by the seller to the buyer, being proved as part of the original bargain for the goods, would not be available as part payment, under the statute; it being inferable from the opinions that, if such oral agreement had been independent of the bargain for the goods, it would have been competent evidence of payment. See this case commented upon in Benjamin on Sales, 145; Schmidt v. Thomas, 75 Wisc. 529; Dehority v. Paxson, 97 Ind. 253.

2 Chaplin v. Rogers, 1 East 192; Blenkinsop v. Clayton. 7 Taunt. 597; Iluntw. Hecht. 8 Exch. 814; Edan v. Dudfield, 1 Q. B. 302; Lillywhite v. Devereux, 15 Mees. & W. 285; Houghtaling v. Ball, 19 Mo. 84; Williams v. Evans, 39 Mo. 201; Wylie v. Kelly, 41 Barb. (N. Y.) 594; Garfield v. Paris, 96 U. S. 557; Hinchman v. Lincoln, 124 U. S. 38.

§ 321 a. Where the thing contracted to be sold is defined, specified, and ascertained at the time of the purchase, proof of the fact that the buyer then agreed to buy that particular thing, and consequently thereby finally recognized and identified it as the particular thing he was to get, will, in general, be a sufficient proof of an acceptance by him. This was clearly brought out in the case of Cusack v. Robinson, by Justice Blackburn, who said: "There was also sufficient evidence that the defendant had, at Liverpool, selected these specific 156 firkins of butter, as those which he then agreed to take as his property as the goods sold, and that he directed those specific firkins to be sent to London. This was certainly evidence of an acceptance."2