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 Taylor v. Wakefield, 6 El. & B. 7G5, especially the opinion of Cromp-ton, J.
2 Kent v. Huskinson, 3 Bos. & P. 233.
§ 327. The acceptance and receipt which the statute requires may be inferred from the conduct of the agent of the buyer or seller, acting under proper authority, as well as from that of the principals themselves.2 One of the parties, it is held, cannot be the agent of the other;3 but this seems a somewhat arbitrary rule, and, as a matter of principle, there seems to be no reason why, upon sufficient proof of the agency, it should not be allowed the same effect as any other.
1 Tomkinson v. Staight, 25 L. J. C. P. 85. See Danforth v. Walker, 40 Vt. 257.
2 Snow v. Warner, 10 Met. (Mass.) 132; Outwater v. Dodge, 6 Wend (N. Y.) 397; Howe v. Palmer, 3 Barn. & Ald. 321; Astey v. Emery, 4 Maule & S. 262. See Barkley v. Rensselaer & Saratoga R. R. Co., 71 N. Y. 205; Rogers v. Gould, 6 Hun (N. Y.) 229; Field v. Runk, 22 N. J. L. 525; and post, § 336; Alexander v. Oneida County, 76 Wisc. 56; Vanderbilt v. Central R. R., 43 N. J. Eq. 669. Where a Michigan man died after purchasing goods in New York by sample, and before their arrival at his store in Michigan, it was held that acceptance and receipt of the goods by his administrator were unauthorized, and the seller was allowed to recover the goods by replevin. Smith v. Brennan, 62 Mich. 349.
3 See Clark v. Tucker, 2 Sand. (N. Y.) 157; Caulkins v. Hellman, 14 Hun (N. Y.) 330. As to whether the agent of the seller may be the agent of the buyer for this purpose, quare. Howe v. Palmer, 3 Barn. & Ald. 321, remarks of Holroyd, J.
§ 327 a. The extent of the authority of the agent to bind his principal is a matter on which the courts have of late inclined to exercise some care; as is shown particularly by the course of decisions in cases where the goods in question have been delivered to, and received by, a carrier for transportation to the buyer. In an early case at nisi prius, where a hogshead of gin, purchased verbally by the defendant from the plaintiff, was shipped to him by a certain vessel, and it appeared that, in the course of dealing between the parties, it had been customary for the plaintiffs to ship similar goods to the defendant by the same vessel, and the defendant had always received them, it was held that under those circumstances the defendant must be considered as having constituted the master of the vessel his agent to accept and receive the goods.1 And in another instance it appears to have been held by the Court of Queen's Bench that the same effect of concluding the contract followed from the goods being delivered to a carrier designated by the buyer for that purpose.2 So far as these early cases touch the question of receipt by a carrier, they are not inconsistent with the current of authority. Inasmuch as a delivery by the seller of the goods sold to a carrier who is not his own agent will divest him of his lien, the possession must be in the buyer. So far, then, as the question of receipt goes, the rule is, that if by the agreement the seller is to deliver the goods to a carrier or other person, who subsequently is to transport them for the buyer, this delivery amounts to an actual receipt by the buyer. It is quite as if the seller had contracted to deliver the goods on board a certain ship, or at some freight or transportation depot; the master of the ship or the agent of the railroad or steamer receives them, it is true, but the essence of the delivery lies in the fact that the seller has delivered the goods at the place designated, rather than to some person in charge, who may well be wholly unknown to buyer and seller alike. And in this point of view, the question of the authority of such a person is evidently of slight importance, as compared with the fact that a delivery has been made as the contract provided.1 Where, however, by his contract, the seller is to forward the goods to a certain place, and employs a carrier for this purpose; or where, even though the buyer pays the expenses of and performs the transportation, yet the seller preserves his possession, as by making out the bill of lading to himself or his own agent; or where the goods are sent by the carrier, to be paid for on delivery; these circumstances show that the delivery to the carrier did not devest the seller of his lien, and consequently did not establish a receipt under the statute.
1 Hart v. Sattley, 3 Camp. 528.
2 Dawes v. Peck, 8 T. R. 330. See Spencer v. Hale, 30 Vt. 314.
§ 327 b. But as to the doctrine that the carrier, when he has received the goods, must also be taken to have accepted them under authority from the buyer, and thereby to have established the contract, this is no longer law.2 And that it should not be, seems clear. So far as the receipt goes, the buyer cannot well complain, for he has himself instructed the seller how to make the delivery and transfer the possession. But in the absence of proof that the buyer has actually vested in the carrier the authority (which under ordinary circumstances he certainly would not have) to acknowledge that goods delivered under the contract are in conformity with its terms, no inference of such authority in the carrier can arise from the mere fact that the goods have been delivered to him.3
1 Allard v. Greasert, 61 N. Y. 1; and see Wilcox Silver Plate Co. v. Green, 72 N. Y. 18.
2 Hart v. Bush, El. B. & E. 494, per Lord Campbell, C.J.; Rindskopf v. De Ruyter, 39 Mich. 1.
3 Nicholson v. Bower, 1 El. & E. 172; Bushel v. Wheeler, 15 Q. B. 442, note, per Coleridge, J.; Smith v Hudson, 6 Best & S. 431, per Blackburn, J.; Johnson v. Cuttle, 105 Mass. 447; Atherton v. Newhall, 123 Mass. 141. See Quintard v. Bacon, 99 Mass. 185; Keiwert v. Meyer, 62 Ind. 587; Hausman v. Nye, 62 Ind. 485; Taylor v. Mueller, 30 Minn.
§ 328. Several of the cases which establish this principle have also contained the statement that there can be no acceptance to satisfy the statute so long as the buyer is afterward to be at liberty to return any of the goods as objectionable under the contract in quantity or quality. As thus stated, this rule for determining the question of acceptance has been very forcibly attacked in a judgment of the Queen's Bench, delivered by Chief Justice Lord Campbell. The defendant purchased a quantity of wheat of the plaintiff, by sample, and directed that the bulk should be delivered on the next morning to a carrier named by himself, who was to convey it from the place where it then was to a market town; and he took away the sample with him. On the following morning the bulk was delivered to the carrier, and the defendant resold it at the market town that day by the same sample. The carrier conveyed the wheat by order of the defendant, who had never seen it, to the sub-vendee, who rejected it as not corresponding with the sample; and the defendant, on notice of this, repudiated his contract with the plaintiff on the same ground. The plaintiff having obtained a verdict below, a rule to set it aside and enter a nonsuit on the ground that there had been no acceptance and receipt of the wheat by the defendant, was now discharged. Lord Campbell said: "Judges as well as counsel have supposed that, to dispense with a written memorandum of the bargain, there must first have been a receipt of the goods by the buyer, and after that an actual acceptance of the same. Hence, perhaps, has arisen the notion that there must have been such an acceptance as would preclude the buyer from questioning the quantity or quality of the goods, or in any way disputing that the contract has been fully performed by the vendor." He then recites the language of the seventeenth section, and proceeds to say: "It is remarkable that, notwithstanding the importance of having a written memorandum of the bargain, the legislature appears to have been willing that this might be dispensed with where by mutual consent there has been part-performance. Hence the payment of any sum in earnest, to bind the bargain or in part-payment, is sufficient. . . . The same effect is given to the corresponding act by the vendor, of delivering part of the goods sold to the buyer, if the buyer shall accept such part and actually receive the same. As part-payment, however minute the sum may be, is sufficient, so part-delivery, however minute the portion may be, is sufficient. This shows conclusively that the condition imposed was not the complete fulfilment of the contract to the satisfaction of the buyer. In truth, the effect of fulfilling the condition is merely to waive written evidence of the contract, and to allow the contract to be established by parol as before the Statute of Frauds was passed. The question may then arise whether it has been performed either on the one side or the other. The acceptance is to be something which is to precede, or, at any rate, to be contemporaneous with the actual receipt of the goods, and is not to be a subsequent act, after the goods have been actually received, weighed, measured, or examined. As the act of Parliament expressly makes the acceptance and actual receipt of any part of the goods sold sufficient, it must be open to the buyer to object, at all events, to the quantity and quality of the residue, and, even where there is a sale by sample, that the residue offered does not correspond with the sample. We are, therefore, of opinion that, whether or not a delivery of the goods sold to a carrier or any agent of the buyer is sufficient, still there may be an acceptance and receipt within the meaning of the act, without the buyer having examined the goods, or done anything to preclude him from contending that they do not correspond with the contract. The acceptance to let in parol evidence of the contract appears to us to be a different acceptance from that which affords conclusive evidence of the contract having been fulfilled." After an elaborate review of the cases upon which the doctrine he contended against rested, he remarks that in the case before him the buyer specially sent his carrier to receive the wheat; "after the delivery of the wheat to his agent, and when it was no longer in the possession of the vendor, instead of rejecting it, as in the other cases, he exercised an act of ownership over it by reselling it at a profit, and altering its destination by sending it to another wharf, there to be delivered to his vendee. The wheat was then constructively in his own possession; and could such a resale and order take place without his having accepted the commodity? Does it lie in his mouth to say that he has not accepted that which he has resold and sent on to be delivered to another? At any rate, is not this evidence from which such an acceptance and receipt may be inferred by the jury? " 1