§ 315. It has been repeatedly observed that the primary intention of the framers of the seventeenth section of the statute was, that contracts for the sale of goods, wares, and merchandise should be put in writing, although other modes of establishing the contract are allowed by it.1 And this view is confirmed by the fact that the other section relating to contracts - the fourth section - provides only for the memorandum in writing, allowing no equivalent. And while, as if in deference to the exigencies of trade, incessant and sudden as they must be, the legislature saw fit, in the seventeenth section, so far to modify the stricter rule, it is quite clear that they intended thereby no departure from the spirit of the statute; but that the alternative evidence was meant to be of such a nature as to constitute, of itself, and in the absence of writing, a sufficient safeguard against perjury, by requiring proof of such conduct on the part of either party as involved an open and public recognition of a contract of sale.

§ 316. This recognition of the contract, as the statute provides, is to be shown by proof of the conduct of the parties with regard to the goods which are the alleged subject of sale, or by proof of payment of a part of the price. In the present chapter we have to deal only with the former provision, i. e., that no contract shall be allowed to be good "except the buyer shall accept a part of the goods so sold,2 and actually receive the same." This provision, it will be seen, names only the buyer, and the same is true of that concerning payment; yet it has never been questioned that the provisions of the statute apply, whether the buyer or the seller be the party to be charged, and the courts have almost uniformly regarded the provision which in terms concerns the receipt by the buyer, as covering, by implication, the complementary and contemporary act of delivery by the seller.

1 Per Penman, C. J., in Bushel v. Wheeler, 15 Q B. 442, in notis. Per Bayley, J., in Smith v Surman, 9 Barn. & C. 569. 2 See Davis v. Eastman, i Allen (Mass.) 422.

§ 316 a. Before proceeding further, it is essential to notice the distinct nature of the acceptance and the receipt for which the statute provides. It is very clearly stated by an eminent writer on this subject. Speaking of the part of the seventeenth section now under discussion, he says: "If we seek for the meaning of the enactment, judging merely from its words, and without reference to decisions, it seems that this provision is not complied with unless the two things concur; the buyer must accept, and he must actually receive part of the goods; and the contract will not be good unless he does both.l And this is to be borne in mind, for as there may be an actual receipt without any acceptance, so there may be an acceptance without any receipt." 2 This view of the statute was at the time (1845), as the writer says, somewhat "in the absence of authority;" but the more recent and weighty decisions, both in England and in this country, have clearly recognized it.3 In the earlier cases, the terms "acceptance,"

1 In the case of Goddard v Binney, 115 Mass. 450, the Supreme Court of Massachusetts held that enough had been done to vest the general ownership of the goods in the buyer, and to cast upon him the risk of loss by fire while the goods remained in the seller's possession, and to support an action by the seller against the buyer for the contract price, although the circumstances of the case might not show "delivery and acceptance within the Statute of Frauds."

2 Blackburn on Sales, 22, 23.

3 Hunt v. Hecht, 8 Exch. 814; Cusack v. Robinson, 1 Best & S. 299; Knight v. Mann, 118 Mass. 143; Hewes v. Jordan, 39 Md. 472; Wilcox Silver Plate Co. v. Green, 72 N. Y. 18; Heermance v. Taylor, 14 Hun (N. Y.) 149. See Benjamin on Sales, Ch. IV. § 1; Langdell, Select Cases on Sales, 1021; Simpson p. Kiumdick, 28 Minn. 352; Billin p. Henkel, 9 Col. 394; Powder River Live Stock Co. v. Lamb, 38 Neb. 339.

"receipt," and "delivery" were often used as if synonymous and interchangeable; and this makes it necessary, at the present day, to notice carefully the exact sense in which they are used in those cases, when they may be cited as authority upon questions concerning "acceptance" or "receipt," as those terms are applied with greater strictness in the more modern decisions.1

§ 316 b. To constitute acceptance, there must be such conduct of the buyer in respect to the goods as affords evidence that he has identified and recognized them as the goods which were to be his by virtue of the alleged contract. The burden of showing this will obviously fall upon the buyer or the seller, accordingly as the one or the other of them is defendant in the action,2 but the fact itself is the same in either case, and it is also a question of what the buyer only has done.8 Again, it is a fact that ordinarily can be proved by oral evidence only; evidence of what the buyer has done or said, or refrained from doing or saying. But it will readily be seen that, by imposing upon the party suing on the contract the necessity of proving not only that the contract was made but that it was also ratified by the other party by conduct such as has been above described, the framers of the Statute of Frauds placed a substantial obstacle in the way of the false swearing which it was their object to prevent.

1 The term "delivery," which does not occur in the statute at all, has been often loosely used to denote acceptance or receipt alone, or a mixture of the two. See, for illustration of this, Searle v. Keeves, 2 Esp. 598, per Eyre, C. J.; Norman v. Phillips, 14 Mees. & W. 277, per Alderson, B. In Tempest v. Fitzgerald, 3 Barn. & Ald. 680, Holroyd, J., in his opinion, speaks constantly of "acceptance," although in reality deciding, and intending to decide, a question of "receipt" involving the custody or possession of the chattel, and the existence of the seller's lien; and see Wright v. Percival, 8 L. J. Q. B. (n. s.) 258; Terney v. Doten, 70 Cal. 399. That no acceptance, as distinguished from delivery, is required under a statute of frauds which specifies delivery only, see Bullock v. Tschergi, 13 Fed. Rep. 345.