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-Acceptance by Carrier.—Title to goods which were unspecified at the time the contract was entered into is generally held to pass to the buyer on the seller's delivery to a carrier of goods conforming to the contract. As has already been pointed out, this is based on the theory—or the legal fiction—that the carrier is the buyer's agent to assent to the seller's specification. In a sense the carrier is the buyer's agent to accept the title to the goods. It is occasionally said, therefore, that the carrier is the buyer's agent to accept.” So far as this means “to accept title,it is, in some measure, correct. But it is incorrect to say that the carrier is agent to accept the goods, within the meaning of the Statute. Delivery of goods to a carrier and its acceptance of them for carriage to the buyer may constitute actual receipt of them by the buyer. But it does not constitute acceptance of them by either the buyer or his agent. This is so even though the buyer has himself designated the carrier to be used. 116

There is some conflict on this point, more apparent than real, however, when the facts are examined. In Cross v. O'Donnell, 117 the buyer of certain hoops had carefully examined them and agreed to take specific ones. He directed that these be delivered, for him, to a certain boat, which was done. The court held the Statute to be satisfied, saying, “Here the defendants accepted the

* There is nothing in the Statute which requires that the accepting and receiving at the same time. Either may precede the other.

• It has finally been settled, both in this country and in England, that a delivery to a general carrier, not designated by the purchaser, is not a sufficient compliance with the

hoops..

116-Johnson V. Cuttle, 105 Mass. 447, 7 Am. Rep. 545; McCormick Mach. Co. v. Cusack, 116 Mich. 647; Gard v. Ramos, 23 Cal. Ap. 303, “delivery" and "receipt" are not synonymous; Kemensky V. Chapin, 193 Mass. 500; Booth v.

A. Levy & Co., 21 Cal. Ap. 427;
Darnell v. Young, 105 Md. 280;
Shelton v. Thompson-Bennett Co.,
96 Mo. Ap. 327.

117–44 N. Y. 661, 4 Am. Rep. 721.

sons.

Statute, Rodgers v. Phillips,118 and for the best of rea

In such a case the purchaser has done nothing beyond making the void contract. He has neither accepted nor received the goods himself, nor authorized or designated any agent to do it for him. But, in this case, the purchasers designated the agents of the ‘Curlew' to receive and transport the hoops to them. They were the agents of defendants for the purpose of receiving the hoops from the plaintiffs. It is not necessary to determine in this case that a mere carrier, designated by the buyer, can both accept and receive for him, so as to make a compliance with the Statute; but I can find no reason, founded upon principle or authority, to doubt that, after the buyer has accepted the article purchased, a carrier, designated by him to take and transport it, can bind him as his agent in receiving it.":119

120

Time of Acceptance. The receipt and acceptance need not be coincident with the making of the contract, but may take place any time thereafter.1

Furthermore, as the cases cited on the various points above clearly show, the acceptance need not be coincident with the receipt, but may follow it. It has been said even that acceptance may precede receipt.

121

Receipt and Acceptance of Part of the Goods.—Receipt and acceptance of a part of the goods contracted for is sufficient to take the entire contract out of the statute and permit oral evidence of the sale of the whole amount. A somewhat extreme illustration is Garfield v. Paris. 122 The defendant had contracted to buy liquor from the plaintiff, the goods being described by the contract, but not then identified. As part of the contract the plaintiff agreed to furnish labels of a special type, other than those ordinarily on the bottles. The plaintiff did send a bunch of such labels to the defendant and the jury found that they were accepted by him. On suit for the purchase price, the defendant set up the Statute. The court held, however, that the receipt and acceptance of the labels opened the way for oral proof of the entire contract. 128

118-40 N. Y. 519.

119-Real conflict is found in Spencer v. Hale, 30 Vt. 314, 7 Am. Dec. 309, where the buyer had not accepted, but had merely designated the carrier.

120-Pinkham V. Mattox, 53 N. H. 600; McKnight v. Dunlap, 5 N. Y. 537; Rickey v. Tenbroek,

63 Mo. 563; Slater Brick Co. v. Shakelton, 30 Mont. 390; Gabriel V. Kildare Elevator Co., 18 Okla. 318; Raymond v. Colton, N. Y. 104 Fed. 219.

121-Cross V. O'Donnell, 44 N. H. 661, 4 Am. Rep. 721.

122-96 U. S. 557.

As to the propriety of this rule, another court has said,124 “ It has been insisted that this construction may leave a purchaser, who buys and receives a single article, liable to be charged as the purchaser of more, if the vendor can bring perjured witnesses to say that it was delivered as part of the greater number purchased. Parties are exposed to the commission of perjury, in relation to all facts depending on human testimony. If the sanctions of an oath, and a severe cross-examination prove an insufficient security, the party liable to suffer must seek protection in the congruity and consistency of truth, and the extreme difficulty of making falsehood accord with the context of circumstances. The Statute of Frauds has interposed some salutory safeguards. If they are not sufficiently enlarged, the legislature alone has power to extend its provisions."

-Must be Goods Contracted For.-The goods actually received and accepted must be part of the goods covered by the contract alleged. The mere fact that the defendant has accepted certain goods will not open

123—Accord, French v. Boston Nat'l Bk., 179 Mass. 405; MacEvoy V. Aronson, 92 N. Y. S. 724; New England etc. Co. v. Standard etc. Co., 165 Mass. 328, 52 Am. St. 516; Weeks v. Crie, 94 Me. 458, 80 Am. St. 410; Richardson v. Smith, 101

Md. 15, 109 Am. St. 552; Leonard v. Medford, 85 Md. 666, 37 L. R. A. 449; Ford v. Howgate, 106 Me. 517; Conelly Construction Co. v. Royce, 35 Okla. 425.

124-Davis v. Moore, 13 Me. 424. 125—101 Md. 15, 109 Am. St. 552.

the way to proof of some contract which did not cover those goods. Acceptance of goods does not permit proof of any and every contract of sale between the parties, but only of the particular contract under which the goods were delivered and received. In Richardson v. Smith,125 for instance, the contract was for the sale of a number of cases of canned tomatoes. At the time the contract

. was made the defendant had received, and apparently accepted, a couple of cans as samples. These cans so received, however, were not deducted from the number which the plaintiff agreed to furnish for the price stated. It was held that no part of the goods contracted for had been received by the buyer. The court said,126 “The receipt and acceptance of the buyer of samples of the goods are held to be a compliance with the Statute when the samples are considered and treated by both parties as constituting a part of the goods sold and as diminishing the quantity or weight of such goods to the extent of their own bulk, otherwise the taking of samples has no effect upon the validity of the contract.'

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-Must Have Been Received Under the Contract.It obviously follows from this principle that the goods “accepted” must have been received under and by virtue of the contract. Hence, even though the buyer takes possession of the goods under a claim of ownership or otherwise, it is not an “acceptance" of them under the contract of sale if the seizure were by way of trespass, or foreclosure of a mortgage, or attachment, or for some other reason than the contract.127 This is not inconsistent with the decision in Durkee v. Powell, supra, because in that case the goods were received under the contract which was later denied. They were not taken by trespass originally.

126—Quoting from the Amer. ican and English Encyclopedia of Law and

citing considerable authority.

127—Hudson v. Emmons, 107 Mich. 549; Washington Ice Co. v. Webster, 62 Me. 341, 16 Am. Rep. 462; Baker V. Cuyler, 12 Barb. (N. Y.) 667. See also, ante, p. 265. 128-158 N. Y. 617.

Separate Contracts.-Another phase of the same rule is the fact that receipt and acceptance of goods delivered under one contract will not admit oral proof of another contract, even though the latter has been entered into coincidently with the first or is otherwise intimately related to it. In Tompkins v. Sheehan128 the defendant had contracted to buy 1900 shares of stock then owned, in severalty, by five different persons. The arrangement was made through one owner as an agent representing all of the others and the defendant contracted to take all 1900 shares. The certificates of one owner, the plaintiff, were not immediately at hand and those of the other owners, representing 1700 shares, were delivered and accepted by the defendant. Thereafter the plaintiff's shares were delivered, but were refused. On suit it was contended that acceptance of the 1700 shares opened the way for oral proof of the contract. The court held that it was not a question of proving the contract; that there were in fact five separate contracts and that acceptance of goods covered by four of them would not open the way for proof of the fifth.129

The most difficult problem arising out of this rule is to determine when there is one entire contract, under which a part of the goods have been received and accepted, and when there are merely two or more coincident and related but wholly independent contracts. There are no rules for determining this issue. Decisions involving the same essential facts have not been sufficiently numerous so that any judicial custom can be deduced. As yet, therefore, each case depends upon the conclusion of the particular judge, without the guidance of rule, although possibly influenced by other decisions on more

129—Accord, McCormick Mach. Co. v. Cusack, 116 Mich. 647;

Weeks v. Crie, 94 Me. 458, 80 Am.
St. 410.

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