owner, though as has been shown it need not be an assent to be owner at once." It is, however, necessary that goods should be identified in order that there may be an acceptance, and if they are still part of a larger mass there can be no acceptance. 12 It has also been said that if the transaction contemplates that the seller shall do something further to put the goods in deliverable condition, there can be no acceptance. 13 This statement, however, should perhaps be qualified. It is of course possible if the parties so intend, though the presumed intention is otherwise, for title to pass at common law while the seller still has something to do upon the goods. It would seem equally possible for him to assent to those goods being the goods to which the bargain relates within the Statute of Frauds, and to accept them as such, the seller agreeing to do further work upon them. It has been decided at least that there may be acceptance, though the goods must be counted, weighed, or measured to fix the price.14 If goods are submitted to the examination of the buyer to determine whether they are the goods he has agreed to take, it seems obvious that there is as yet no acceptance except upon the construction of the statute given by the recent English decisions, to which reference will be made hereafter. 15

11 The buyer "must have done something indicating that he has accepted part of the goods and taken to them as owner," by Lord Campbell, in Parker v. Wallis, 5 E. & B. 21, 26. So in Rohde v. Thwaites, 6 B. & C. 388, 393, Holroyd, J., said: "The sugars agreed to be sold being part of a larger parcel, the vendors were to select twenty hogsheads for the vendee. That selection was made by the plaintiffs, and they notified it to the defendant, and the latter then promised to take them away. That is equivalent to an actual acceptance of the sixteen hogsheads by the defendant." Where the action of the buyer is ambiguous and may or may not indicate acceptance, his intent is material. Jarrell v. Young, 105 Md. 280, 66 Atl. 50.

12 Terney v. Doten, 70 Cal. 399, 11

Pac. 743; Knight v. Mann, 118 Mass. 143; Atherton v. Newhall, 123 Mass. 141, 25 Am. Rep. 47; Rodgers v. Phillips, 40 N. Y. 519.

13 Hinchman v. Lincoln, 124 U. S. 38, 51, 8 S. Ct. 369, 31 L. Ed. 337; Brunswick Grocery Co. v. Lamar, 116 Ga. 1, 42 S. E. 366; Gilman v. Hill, 36 N. H. 311; Outwater v. Dodge, 7 Cow. 85; Cooke v. Millard, 65 N. Y. 352, 22 Am. Rep. 619; Wegg v. Drake, 16 U. C. Q. B. 252.

14 Daniel v. Hannah, 106 Ga. 91, 31 S. E. 734; Macomber v. Parker, 13 Pick. 175; Cunningham v. Ashbrook, 20 Mo. 553. In the latter two cases the goods were delivered to the buyer while still unweighed. In Daniel v. Hannah, they were left at an agreed public place.

15 See infra, § 547.

Mere delivery is not sufficient, 16 and "under the Statute the buyer is at liberty to refuse even if his action could be found to have been arbitrary and wholly unreasonable." 17

§ 543. Time of acceptance.

It is clearly settled that acceptance, as well as receipt of the goods, may be subsequent to the common-law bargain to which the statute is applicable, whether a contract to sell or a sale. 18 A more difficult question relates to the rule covering the relative time of acceptance and receipt. That receipt may precede acceptance there seems no doubt. Thus, where goods are sent in accordance with the contract and the buyer takes them into his possession, this will constitute receipt, and when he thereafter examines them and assents to their quality, this will constitute acceptance. 19 It is equally true that acceptance may precede the receipt. This was finally decided in England by the case of Cusack v. Robinson, 20 and the decision

16 Nicholson v. Bower, 1 E. & E. 172; Jamison v. Simon, 68 Cal. 17, 8 Pac. 502; Hewes v. Jordan, 39 Md. 472; Remick v. Sandford, 120 Mass. 309; Kemensky v. Chapin, 193 Mass. 500, 79 N. E. 781; Mechanical Boiler Co. v. Kellner, 62 N. J. L. 544, 43 Atl. 599; Stone v. Browning, 51 N. Y. 211, 68 N. Y. 598; Gibbs v. Benjamin, 45 Vt. 124; Bacon v. Eccles, 43 Wis. 227. Except in Iowa and perhaps Indiana. See supra, § 540, n. 1.

17 Kemensky v. Chapin, 193 Mass. 500, 79 N. E. 781.

18 Buckingham v. Osborne, 44 Con... 133; Coffin v. Bradbury, 3 Ida. 770, 35 Pac. 715, 95 Am. St. Rep. 37; Davis v. Moore, 13 Me. 424; Bush v. Holmes, 53 Me. 417; Marsh v. Hyde, 3 Gray, 331; McCarthy v. Nash, 14 Minn. 127; Ortloff v. Klitzke, 43 Minn. 154, 44 N. W. 1085; Field v. Runk, 2 Zab. 525; McKnight v. Dunlop, 5 N. Y. 537, 55 Am. Dec. 370; Jackson v. Tupper, 101 N. Y. 515, 5 N. E. 65; Danforth v. Walker, 40 Vt. 257; Cotterill v. Stevens, 10 Wis. 422.

19 Knight v. Mann, 118 Mass. 143. See also cases cited supra, § 542, note.

20 1 B. & S. 299. This case overruled certain expressions in Saunders v. Topp, 4 Ex. 390, to the effect that it is necessary that the acceptance should be subsequent to or contemporaneous with the receipt; but contrary expressions are to be found in Morton v. Tibbett, 15 Q. B. 428. In Cusack v. Robinson, Blackburn, J., quoted these and summarized the matter as follows: "The intention of the Legislature seems to have been that the contract should not be good unless partially executed; and it is partially executed if, after the vendee has finally agreed on the specific artiIcles which he is to take under the contract, the vendor by the vendee's directions parts with the possession, and puts them under the control of the vendee, so as to put a complete end to all the rights of the unpaid vendor as such. We think, therefore, that there is nothing in the nature of the enactment to imply an intention,

has been followed in the United States, 21 though expressions may be found which seem, literally interpreted, to indicate a contrary understanding. 22 The Uniform Sales Act, therefore, follows the existing law in declaring that acceptance may be either before or after delivery of the goods.23 Indeed, if the goods in regard to which the parties are dealing are identified, the agreement of the buyer to buy these goods is in itself an acceptance of them.24

§ 544. Acceptance by dealing with the goods as owner.

Though acceptance will oridnarily take place after the buyer has sufficiently examined the goods to understand their nature and quality, it is obviously possible for a buyer to accept goods without making an examination. If he assents to take specified goods as his, there seems no reason to doubt that he has accepted them within the terms of the statute. If, therefore, he does any act in relation to specified goods, which necessarily involves the conclusion that he has taken them as owner, there is an acceptance. Such an act is a resale of the goods by the buyer. 25 So mortgaging the goods implies acceptance; 26 or as

which the Legislature has certainly not in terms expressed, that an acceptance prior to the receipt will not suffice."

21 Ex parte Safford, 2 Low. 563; Hewes v. Jordan, 39 Md. 472, 17 Am. Rep. 578; Ullman v. Barnard, 7 Gray, 554; Cross v. O'Donnell, 44 N. Y. 661, 4 Am. Rep. 721; Bristol v. Mente, 79 N. Y. App. Div. 67, 74, 80 N. Y. S. 52; affirmed, without opinion, 178 N. Y. 599, 70 N. E. 1096.

22 See Jones v. Mechanic's Bank, 29 Md. 287, 96 Am. Dec. 533; Black v. Delbridge Co., 90 Mich. 56, 51 N. W. 269; Shepherd v. Pressey, 32 N. H. 49. In the case first cited, the court said: "There can be no acceptance under the statute without delivery by the seller," and this statement was quoted with approval in Richardson

v. Smith, 101 Md. 15, 20, 60 Atl. 612, 70 L. R. A. 321, 109 Am. St. Rep. 552.

Too much importance should not be laid on such expressions, however. This is evident from the fact that, in spite of these remarks by the Maryland court, that very court has followed Cusack v. Robinson, when the question was actually involved. See Hewes v. Jordan, supra, n. 21. 23 Section 4 (3) of the Act. supra, § 502.

See

24 See cases referred to in this and the following sections, passim.

25 The leading case upon this point is Morton v. Tibbett, 15 Q. B. 428. Lord Campbell following the earlier case of Blenkinsop v. Clayton, 7 Taunt. 597, held the resale an acceptance, saying: "He exercised an act of ownership over it by reselling

26 Wyler v. Rothschild, 53 Neb. 566, 74 N. W. 41.

senting to the deposit of goods in a warehouse for the buyer and paying part of the price,27 or removing, or otherwise dealing with property as owner. 28, 29 Even detention of the goods for an unreasonable time may indicate acceptance.30 In the cases that have just been put it will be observed that the buyer does not express satisfaction with the goods, he merely assumes ownership of them. If he does this it may be that in spite of objections and even refusal to accept there may, nevertheless, be an acceptance.31 Acts of any sort which not only indicate an assumption of ownership, but also indicate the buyer's satis

faction with the particular goods furnished him, after examination, even more clearly indicate acceptance.32 In connection with the question of acceptance under the Statute of Frauds by assuming ownership, cases involving acceptance as an indication of transfer of the property apart from the statute may be examined.33

§ 545. Right of objection.

Much discussion has arisen in regard to the question whether acceptance can take place before the purchaser has lost his right to object. In several cases statements have been made that this is impossible.34 These dicta were examined in Morton v. Tibbett 35 and held to be unfounded. The conclusion of this decision seems to follow inevitably from the decisions in the previous section and from a consideration of the matter upon principle. If a horse is sold with a warranty and the buyer takes him home and uses him, and pays the price, surely there has been an acceptance and receipt; but equally certainly the buyer may still object that the horse does not comply with the warranty.36 Similarly, if there is a contract to sell goods by sample, the buyer may take and use the goods that are offered to him, but this will not preclude him from afterward showing that the warranty implied in a sale by sample was not complied with. Again, if the buyer is induced to buy goods by fraud, or a mutual mistake of fact exists as to the nature of the goods, these circumstances could be shown although the buyer had taken to the goods as owner and had paid the price for them."

37

§ 546. Right of rejection.

By a curious substitution of a word that seems similar, but means something different, Lord Campbell's decision and Smith v. Surman, 9 B. & C. 561, 577; Norman v. Phillips, 14 M. & W. 277.

32 Beaumont v. Brengeri, 5 C. B. 301; Richards v. Burroughs, 62 Mich. 117, 28 N. W. 755; Gavlin v. MacKenzie, 21 Or. 184, 27 Pac. 1039; Schmidt v. Thomas, 75 Wis. 529, 44 N. W. 771; Walker v. Boulton, 3 U. C. Q. B. 252.

33 See infra, §§ 700 et seq.

34 Howe v. Palmer, 3 B. & Ald. 321; Hanson v. Armitage, 5 B. & Ald. 557;

35 15 Q. B. 428.

36 Remick v. Sandford, 120 Mass. 309, 316, note.

37 See, infra, § 712, also Edwards v. Brown, 98 Me. 165, 166, 56 Atl. 654.

38 Rodgers v. Phillips, 40 N. Y. 519, per Daniels, J.