2 Rasch v. Bissell, 52 Mich. 455. See ante, §§ 316 g-316 i. 3 Chaplin v. Rogers, 1 East 195.

4 Tempest v. Fitzgerald, 3 Barn. & Ald. 380.

§ 324. In Elmore v. Stone, the constructive delivery and consequent receipt was shown by the conduct of the seller in consenting to keep, and keeping, the horses, after the sale, at livery; that is, as the bailee of the buyer.3 And in Howe v. Palmer, where the defendant orally purchased of the plaintiff a quantity of tares by sample, and left them on the plaintiff's premises, saying that he had no immediate use for them, and requested that they might remain there till he wanted to sow them, which was agreed to; and afterwards the tares were measured out by the agent of the plaintiff and set apart in his granary, and ordered to be delivered to the defendant when he called, and the defendant afterwards refused to take them, for which the action was brought; this evidence was held ample to prove a delivery, but the plaintiff was nonsuited because he could not show that the defendant had ever accepted the tares thus set apart for him as satisfying the contract.4

§ 325. The circumstance of marking the goods with the name of the buyer is sometimes treated as if it could concern only their acceptance; again, as if it had to do only with their receipt. But from all the cases it seems clear that marking the goods is not a peculiar transaction for which any special rule has been, or should be, laid down; but that, like any other act done to them, the marking may be evidence for the jury of the buyer's identification and acknowledgment of the goods he is to receive, or of the seller's devesting himself of his lien, by consenting to hold as bailee. And sometimes, indeed, both buyer and seller may be affected by the marking; for it may show both the identification by the former, and the abandonment of his lien by the latter.1

1 Holmes v. Hoskins, 9 Exch. 753.

2 See also Carter v. Toussaint, 5 Barn. & Ald. 855; Safford v. McDon-ough, 120 Mass. 290; Washington Ice Co. v. Webster, 62 Me. 341; Jerney v. Doten, 70 Cal. 399.

3 Elmore v. Stone, 1 Taunt. 457.

4 Howe v. Palmer, 3 Barn. & Ald. 321. See Beaumont v. Brengeri, 5 C. B. 301, and Castle v. Sworder, 6 Hurlst. & N. 828.

§ 326. It is, of course, always to be noticed that the effect of the acts relied on to show an acceptance or an actual receipt may be much qualified by the circumstances under which they were done. Thus it has been held that the taking out of a sample, or the opening and spreading out of the goods delivered, even though they be so injured thereby as to diminish their value, may not conclude the buyer.2 Nor will a delivery, or a taking possession of the goods, not in pursuance of the intention or with the consent of the seller, vest their possession or control in the buyer, or be evidence of a receipt.3 This is well illustrated by the case of Taylor v.

1 Thus, in the cases of Proctor v. Jones, 2 Carr. & P. 532, and Rappleye v. Adee, 65 Barb. (N. Y.) 589, it was evidence of acceptance; in Anderson v. Scott, 1 Camp. 235, note, Bill v. Bament, 9 Mees. & W. 36, Byassee v. Reese, 4 Met. (Ky.) 372, and Dyer v. Libby, 61 Me. 45, of receipt (and see Walden v. Murdock, 23 Cal. 540); and in Hodgson v. Le Bret, 1 Camp. 233, Baldey v. Parker, 2 Barn. & C. 37, and Kealy v. Tenant, 13 Ir. C. L. 394, of both.

2 Gorman v. Boddy, 2 Carr. & K. 145; Kent ». Huskinson, 3 Bos. & P. 233; Baylis v. Lundy, 4 L. T. n. s. 176; Curtis v. Pugh, 10 Q. B. 1ll; Elliott v. Thomas, 3 Mees. & W. 170; Carver v. Lane, 4 E. D. Smith (N. Y.) 168 See Bacon v. Eccles, 42 Wisc. 227.

3 Godts v. Rose, 17 C. B. 229; Phillips v. Bistolli, 2 Barn. & C. 511; Baker v. Cuyler, 12 Barb. (N. Y.) 667; Leven v. Smith, 1 Denio (X. Y.) 571; Mechanics & Traders' Bk. v. Farmers & Mechanics' Nat Bk., 60 N. Y. 40. See Davis v. Eastman, 1 Allen (Mass.) 422. It might however be evidence of an acceptance; see Tempest v. Fitzgerald, 3 Barn. & Ald. 680, per Abbott, C. J.

Wakefield, where a landlord had agreed orally with his tenant to sell him, at the expiration of his term, certain goods then in his possession. At the end of the tenancy, the tenant tendered the price, but the landlord refused to take it, and the tenant subsequently brought action against him for the conversion of the goods. In support of it, he endeavored to rely upon his having had the goods in his possession as evidence of a receipt by him; but, as the court in their opinions pointed out, until payment or tender, the tenant had no right to hold as buyer; and the subsequent refusal of the landlord to give him such a right evidently negatived any inference of delivery under the contract of sale.1

§ 32G a. It was said by Heath, J., in Kent v. Huskinson,2 that the acceptance by the buyer must be "such as completely affirms the contract." It is obvious, however, that the mere act of accepting goods, though it may give an indication more or less sure of the quantity and quality bargained for, gives none whatever as to the price and time, or other conditions of payment, and the same remark applies with nearly the same force to the giving of earnest to bind the bargain. So far, then, as these alternative methods of fixing the liabilities of the parties go to prove the contract, they fall far short of the written memorandum, which, as we shall see hereafter, is required to afford evidence in itself of the terms agreed upon. The statute requires that when an oral contract of sale is sought to be enforced at law, and the statute is relied upon as a bar to its enforcement, this bar may be removed by the production of certain evidence in writing, or by oral proof of part-payment, or by satisfying the jury that the conduct of the parties to the contract has been such as to show that the relation of buyer and seller has been recognized and acted upon by them. This may be done by proof of the two things, acceptance and receipt of the goods, or a part of them; that the buyer has openly recognized and identified the goods as his by purchase, and that the seller has put them into his custody or control as their owner. The sufficiency of this requirement as a guard against fraud and perjury is manifest; for it will be observed that facts must be proved, sufficient to support the reasonable inference that the acceptance and the receipt have taken place; and, as is seen in many of the cases, these facts will often be so definite and so public in their nature, that an attempt to prove them by false swearing would be readily defeated. When, therefore, these additional matters of acceptance and receipt have been made to appear to the satisfaction of the jury, the contract, though it rest entirely upon parol proof, is completely available, like any other contract, between the parties. The application of this principle is seen in a case before the Court of Common Pleas, where the plaintiff delivered to the defendant a piano, at the price of 15, and it was accepted and received by him. In an action for the price, it was proved that, when the piano was delivered, the plaintiff asked ready money for it, but the defendant said he was entitled to keep it as security for the payment of certain bills, and refused to deliver it up again to the plaintiff. Parol evidence was heard at the trial as to what the agreement really was, and, the jury having found for the plaintiff, the defendant on leave moved to set it aside and enter a nonsuit. In support of the motion it was contended that by acceptance of the goods "so sold" the statute meant acceptance of them as sold under the contract alleged, and that it must be such an acceptance as is equivalent to a memorandum in writing, and shows all the terms of the contract, and that parol evidence should not have been admitted to explain the acceptance of the piano. The court discharged the rule on grounds which appear in the following extracts from the opinions of the judges. Jervis, C. J.: "My mind has wavered considerably during the discussion of this case. At one time I was inclined to think that there had been no acceptance under the statute; but, after looking into the matter, I now think that there was, and that the rule ought, therefore, to be discharged. In order to satisfy the statute, on a sale of goods for 10 or more, there must be either a writing, or a part-payment, or a delivery and acceptance of the goods 'so sold.' I think those words mean an acceptance of goods sold at a price of 10 or more. In this case there is no doubt that there was a delivery of that which the plaintiffs say was sold for more than 10; and there is no doubt there was an acceptance, as the defendant says that he accepted on certain terms. It is just as if the defendant had said he accepted on six months' credit. The terms of the contract as to the time when the money is to be paid would then be the question in dispute, there being no doubt about the acceptance. The jury has found the acceptance, and the terms set up by the plaintiffs. This case really does not differ from the ordinary case where a man says to another, 'I have sold you goods for present payment,' and the other answers,'You sold them on a month's credit, and you have brought your action too soon.' The fact that there is no case to be found in the books to support the defendant's view affords a strong argument to show that it is not in accordance with the meaning of the statute. I think, in this case, the defendant is precluded by the finding of the jury, and that, therefore, the rule ought to be discharged." Williams, J.: "1 think there is no doubt there was a delivery and acceptance under the Statute of Frauds. No doubt the acceptance was accompanied by a denial by the defendant of one of the terms necessary to support this action, and for some time I felt great difficulty in saying that any proof could be offered, in lieu of writing, which amounted, instead of a corroboration of the contract, to a denial of it. But, upon the whole, I am of opinion that nothing was intended in the statute, except that the defendant should have accepted in the quality of vendee. The legislature has thought that where there is a fact so consistent with the alleged contract of sale as acceptance, it would be quite safe to dispense with the necessity of a writing. The statute does not mean that the thing which is to dispense with the writing is to take the place of all the terms of the contract, but that the acceptance is to establish the broad fact of the relation of vendor and vendee. Here the relation of vendor and vendee was established, and that was sufficient to satisfy the statute." Crowder, J.: "I think there was an acceptance within the Statute of Frauds. The jury having found the acceptance, there is no doubt there was a delivery and acceptance, and that enables the plaintiff to lay before the jury evidence of the terms of the contract. It seems to me, that all that was necessary under the statute was that there should have been a contract of sale, and that, under that contract, the vendee should have accepted; it being a question for the jury on the parol evidence what were the precise nature and terms of the contract." 1