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.
§ 321 b. The application of this principle to the many reported cases of the sale of a specific thing, e. g., a horse, a jewel, or a piano, would seem to make the proof of the fact that the party agreed distinctly for its purchase sufficient to warrant the jury in finding an acceptance, which, coupled with their finding a receipt also, upon sufficient evidence, would sufficiently attest the contract and enable the plaintiff to proceed with his action upon it. And a close examination of the language of the opinions will, it is believed, show that the attention of the court in each of these cases was particularly devoted to the evidence of the subsequent conduct of the parties toward the chattel, as bearing upon and establishing an inference of delivery and receipt.1
1 Norman v. Phillips, 14 Mees. & W. 277; Bushel v. Wheeler, 15 Q. B. 442, note; Stone v. Browning, 68 N. Y. 598. In Denny v. Williams, 5 Allen (Mass.) 1, the passage in the text is affirmed, with the qualification that, " if the evidence is such that the court would set aside any number of verdicts rendered upon it, toties quoties, then the cause should be taken from the jury by instructing them to find a verdict for the defendant. On the other hand, if the evidence is such that, though one or two verdicts rendered upon it would be set aside on motion, yet a second or third verdict would be suffered to stand, the cause should not be taken from the jury, but should be submitted to them under instructions." Per Chapman, J. Hinchman v. Lincoln, 124 U. S. 38.
2 Cusack v. Robinson, 1 Best & S. 308; see also Bog Lead Mining Co. v. Montague, 10 C. B. N. s. 489, per Willes, J., citing Cusack v. Robinson with approval.
§ 321 c. It is, however, highly important to bear in mind that the principle noted above applies only where the contract of sale concerns goods which the buyer, by his bargain, agrees to take as they are, and does not contain any provision giving him the right of subsequent examination of the goods, to ascertain what they are, and whether they are what he agrees to take. In this latter case, it is evident that the identification and recognition, which facts constitute the acceptance, must, by the very terms of the contract, take place subsequently to the time of its making.2
§ 321 d. As has been suggested in a previous section, the conduct of the parties with regard to the goods furnishes the source from which the jury are to ascertain whether there has been an acceptance and an actual receipt of the goods or a portion of them. With regard to the acceptance, the conduct of the buyer is most important, as the acceptance is a thing in which he takes by far the greater, and usually the sole part. When goods have been sent to him to be examined and approved, the conduct of the seller is generally material, on the question of acceptance, only as it appears to be conduct which precludes acceptance by the buyer, - is incompatible with such acceptance. Where, for instance, acceptance of goods sold by sample was sought to be shown from the fact of the goods not having been returned by the buyer immediately after delivery, evidence that, while they remained, the seller had notified the holder, a railway company, to hold the goods thereafter for him, was said to be material upon the question of any subsequent acceptance.1
1 See particularly Tempest v. Fitzgerald, 3 Barn. & Ald. 680, per Hol-royd, J. In Saunders v. Topp, 4 Exch. 390, the question was left undecided, there being evidence of an acceptance subsequent to the time of the sale.
2 Compare Hewes v. Jordan, 39 Md. 472, which seems to be thus distinguished from Cusack v. Robinson, § 321 a, supra; Beaumont v. Bren-geri, 5 C. B. 301; Maberley v. Sheppard, 10 Bing. 99; Smith v. Fisher, 59 Vt. 53.
§ 321 e. The conduct of the buyer showing an acceptance consists in his so dealing with the goods as to warrant the inference that he has admitted and recognized them, or such part of them as he has dealt with, to be his goods under the contract. And this inference, it is held, may be drawn as well from his silence and failure to act, as from what he does and says.2
§ 322. Upon the question of receipt, the seller being the party chiefly to be prejudiced, because of the loss of his lien incident to his parting with the control of the goods, it is his conduct that is of primary importance, and the conduct of the buyer with regard to the goods is material, chiefly because of the inference arising from the seller's acquiescence in it. In Chaplin v. Rogers, after a verbal sale had been made of a stack of hay, the resale of a part of it by the vendee to a third person was held evidence of a delivery, because, as said Lord Kenyon, C. J., "here the defendant dealt with this commodity afterwards as if it were in his actual possession, for he sold part of it to another person."3 But it is manifest that the sale to another person was evidence of a delivery of the hay to the vendee of the first contract only so far as, under the circumstances, it afforded evidence that the vendor in that contract had consented to and acquiesced in such dealings as would tend to show the giving up of his lien.
§ 323. And so, in Tempest v. Fitzgerald,4 where the buyer of a horse ordered him to be taken out of the stable, and he and his servant rode him, and his servant cleaned him, and he gave directions for his treatment, and in Holmes v. Hoskins,1 where the horse, though remaining in the seller's field, was fed on the buyer's hay, the inference of receipt arising from these acts indicative of ownership was held to be controlled by the fact that, in each case, the terms of the sale were cash, and, as the seller could not have intended to part with his property until he was paid, the buyer could not receive it, within the meaning of the statute, so as to conclude the bargain.2
1 Smith v. Hudson, 6 Best & S. 431; and see Taylor v. Wakefield, 6 El. & B. 765.