statement in Morton v. Tibbett,39 that an acceptance might take place though the right to object still remained, has been interpreted as deciding that acceptance could take place when a right to reject still existed.40 It is obvious that acceptance does preclude the possibility of any assertion by the buyer that he did not at the time of the acceptance assent to become the owner either then or thereafter. The definition previously given, which seems both to accord with the natural meaning of the language of the statute and to be supported by authority, requires that the buyer shall have assented to become the owner of the goods. Though it does not follow that the buyer may not claim that the goods do not fulfill a warranty, express or implied, in regard to them, nor that he may not rescind his assent to becoming the owner, if he has been induced by fraud, duress, or mistake to give such assent (or if there has been a breach of warranty in jurisdictions where breach of warranty justifies rescission of title), it does follow that he cannot assert that he did not agree to take the property in the very goods in question, if within the meaning of the statute he has accepted them.41

§ 547. Modern English rule.

The curious substitution of the word "reject" for "object" has enabled the English court to give a meaning to acceptance widely different from any meaning given by any court prior to 1878, and remarkable for its disregard of the language of the act. It is now held that if goods are offered under contract to the buyer and the buyer examines them, even though immediately upon such examination he refuses them, there is an acceptance.42 The English Sale of Goods Act, following these

39 15 Q. B. 428.

40 Kibble v. Gough, 38 L. T. Rep. 204; Page v. Morgan, 15 Q. B. D. 228; Taylor v. Smith, [1893] 1 Q. B. 65; Abbott v. Wolsey, [1895] 2 Q. B. 97; Edwards v. Brown, 98 Me. 165, 166, 56 Atl. 654; Rodgers v. Phillips, 40 N. Y. 519, per Woodruff, J.

41 Remick v. Sandford, 120 Mass. 399, 316; Simpson v. Krumdick, 28 Minn. 352, 354, 10 N. W. 18. Receipt

and acceptance will not be invalidated, therefore by a subsequent return of the goods to the seller, if the latter does not assent to receive them back. McMillan v. Heaps, 85 Neb. 535, 123 N. W. 1041.

42 Kibble v. Gough, 38 L. T. Rep. 204; Page v. Morgan, 15 Q. B. S. 228; Taylor v. Smith, [1893] 2 Q. B. 65; Abbott v. Wolsey, [1895] 2 Q. B. 97. See also Thames Canning Co. v. Eck

decisions, now defines acceptance as meaning any act by the buyer in relation to the goods which recognizes a pre-existing contract. 43 These English cases, however, have had no following in the United States. 44

§ 548. Who may accept.

A buyer may accept the goods by an authorized agent." The power of the agent to bind his principal depends upon the law of agency. The statute imposes only the limitations immediately to be mentioned. There is a dictum in a New York decision that payment to an agent whose authority is derived from the same oral agreement, the validity of which is in question, will not take the agreement out of the statute.46 The same reasoning would be applicable to an agent to receive the goods instead of the money," but this reasoning is open to the criticism applicable to New York decisions upon acceptance and receipt generally, that it attempts to make a rule (which the words of the statute do not justify), that something other than mere oral words is always necessary to take a case out of the statute. 48 It may be observed also that unquestionably an agent as a broker or auctioneer may be authorized by parol

hardt, 23 Dom. L. R. 805, 34 Ont. L. R. 72, with which compare Scott v. Melady, 27 Ont. App. 193.

43 Section 4 (3). The English authorities have now defined acceptance, therefore, as an acceptance of the contract; but the statute says plainly that what is requisite is acceptance of the goods. But a receipt signed by the seller for bags sent by the buyer, into which potatoes, the subject-matter of the contract, were to be put, was held not a sufficient acceptance.

v. Brown, 25 Times L. R. 745.

Sumner

44 Dierson v. Petersmeyer, 109 Iowa, 233, 80 N. W. 389; Corbett v. Wolford, 84 Md. 426, 36 Atl. 1088; Remick v. Sandford, 120 Mass. 309; Mechanical Boiler Co. v. Kellner, 62 N. J. L. 544, 43 Atl. 599; Stone v. Browning, 51 N. Y. 211, 68 N. Y. 598. Compare Standard Wall Paper Co. v. Towns,

72 N. H. 324, 56 Atl. 744; Berkman v. Brower, 76 N. Y. Misc. 508, 135 N. Y. S. 582; Strong v. Dodds, 47 Vt. 348.

45 Simmonds v. Humble, 13 C. B. (N. S.) 258; Leavens v. Pinkham, 164 Cal. 242, 128 Pac. 399; Jones v. Mechanics' Bank, 29 Md. 287, 96 Am. Dec. 533; Snow v. Warner, 10 Met. 132, 43 Am. Dec. 417; Gaff v. Homeyer, 59 Mo. 345; Vanderbilt v. Central R. R. Co., 43 N. J. Eq. 669, 12 Atl. 188; Outwater v. Dodge, 6 Wend. 397; Rogers v. Gould, 6 Hun, 229; Wilcox Silver Plate Co. v. Green, 72 N. Y. 17; Alexander v. Oneida Co., 76 Wis. 56, 45 N. W. 21; Friedman v. Plows, 158 Wis. 435, 149 N. W. 218.

48 Hawley v. Keeler, 53 N. Y. 114, 120.

47 See Alexander v. Oneida Co, 76 Wis. 56, 60, 45 N. W. 21.

48 This rule is discussed, infra, § 554.

to sign a memorandum for the buyer as part of the transaction to which the memorandum relates.49 Whatever may be said of the New York decisions, it is at least settled, not only in New York but elsewhere, that the seller himself cannot be the agent of the buyer to accept. Aside from the statute it is entirely possible for the buyer to constitute the seller his agent to appropriate goods to the bargain, and such appropriation is sufficient to transfer title at common law, but it is not sufficient to constitute an acceptance within the statute.50 This principle is necessarily involved in the decisions which hold that delivery to a carrier or other bailee for the buyer is not a satisfaction of the statute, even though the seller has selected and shipped the goods in accordance with the offer or contract of the consignee,51 for the delivery to the carrier or bailee for the buyer is clearly a sufficient receipt; what is lacking is the acceptance.52 For this reason the delivery of goods at a particular place by the seller, in accordance with the contract, does not satisfy the statute unless there is some acceptance before or after the delivery.53 Acceptance by one joint buyer is insufficient 54 unless he is, as partner or otherwise, expressly or impliedly authorized by his co-buyers to act for them.

549. Parties may withdraw before the satisfaction of the statute.

Until the contract or sale has become enforceable under the statute either party may withdraw; consequently, the buyer

49 See infra, § 581.

50 See supra, § 542; also Beedy v. Brayman Wooden Ware Co., 108 Me. 200, 79 Atl. 721, 36 L. R. A. (N. S.) 76, Ann. Cas. 1913 B. 273; Peck v. Abbott & Fernald Co., 223 Mass. 423, 111 N. E. 890; Sotham v. Weber, 116 Mo. App. 104, 92 S. W. 181.

51 See infra, § 556. And a carrier to whose care the goods were consigned at the buyer's request (he having given the consignee directions for forwarding) is not an agent to accept, and therefore his acceptance of a bill of lading does not satisfy the statute. Meredith v. Meigh, 2 E. & B. 364.

52 Lloyd v. Wright, 25 Ga. 215; Jones v. Mechanics' Bank, 29 Md. 287, 96 Am. Dec. 533; Kemensky v. Chapin, 193 Mass. 500, 79 N. E. 781; Cross v. O'Donnell, 44 N. Y. 661, 4 Am. Rep. 721. See also cases cited infra, § 556.

53 Hart v. Bush, E. B. & E. 494; Eichberg v. Benedict Paper Co., 119 Mo. App. 262, 95 S. W. 963; Finney v. Apgar, 31 N. J. L. 266; Brewster v. Taylor, 63 N. Y. 587.

54 Chamberlain v. Dow, 10 Mich. 319. The contrary decision of Smith v. Milliken, 7 Lans. 336, cannot be supported.

may reject the goods though he has previously accepted them, provided he has not as yet received them, 55 and on the other hand the seller may refuse to go on with the bargain and a subsequent acceptance by the buyer will be ineffectual. 56

§ 550. Acceptance under a mistake.

In Rodgers v. Phillips, 57 Daniels, J., said, referring to an acceptance of an alleged bill of lading by the buyer after the goods which it represented had been destroyed: "What they did in this respect was done before they had received any intelligence of the misfortune to the property. And even if prior to that time they had determined to accept the shipment by accepting the bill of lading upon the supposition and belief that the property was then afloat, they became at liberty to rescind their determination and refuse to receive it as soon as they discovered that it had been formed under a mistake of a material fact affecting it." The doctrine thus stated seems open to question. By hypothesis, the requisites at common law for transfer of title have been satisfied and all that is necessary is to satisfy the statute. There seems no reason why the buyer should be protected if the requirements of the statute have actually been satisfied, even though he was induced to satisfy them by a mistaken belief in regard to an essential fact. He is only doing what he ought to do in any event, although he could not be legally compelled to do it. Where a man performs a duty, even if an unenforceable one, such as paying a debt barred by the Statute of Limitations, or accepting goods which he had bought under an oral contract, mistake affords no reason for excusing him. 58 The case presents a certain analogy to that of a memorandum used to satisfy the Statute of Frauds, though not made for that purpose.59 Accordingly, in Massachusetts, the buyer has been held liable upon an ¡ 55 Hatch v. Gluck, 47 N. Y. Misc. Rep. 122, 93 N. Y. S. 508. See supra. §§ 540, 542.

56 Smith v. Hudson, 6 B. & S. 431. 57 40 N. Y. 519.

58 Townsend v. Hargraves, 118 Mass. 325. See also infra, § 561.

59 See infra § 573. In Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140, a letter written after loss of goods to which it related, protesting against being charged for them, was held a sufficient memorandum.

acceptance and receipt of part made under these circumstances.60

§ 551. Actual receipt.

There is less opportunity for doubt as to the meaning of actual receipt than there is as to the meaning of acceptance. Whatever difficulties exist in regard to receipt are rather due to the inherent difficulty of determining what is, in fact, possession, than to any doubt as to the meaning of the word "receipt." All cases admit that it means acquisition of possession by the buyer, and in the following sections the question of what is such possession will be considered.61 A question may arise, however, whether goods admittedly contracted for and accepted and received were due and received under the particular oral contract, enforcement of which is sought.62

§ 552. Forcible taking or giving of possession.

In an early English case 63 it was casually remarked by Abbott, C. J.: "I do not mean, however, to say that if the buyer were to take away the goods without the assent of the seller, that would not be sufficient to bind him." But it is probable that it would generally be held that the receipt or possession that the contract requires must be obtained with

60 Townsend v. Hargraves, 118 Mass. 325. See also Vincent v. Germond, 11 Johns. 283.

61 A custom to regard something as acceptance and receipt is not enough. Calvert v. Schultz, 143 Mich. 441, 106 N. W. 1123. As acceptance has reference simply to the buyer's assent to becoming owner, it would seem that any act which, by a custom binding both parties, had been treated as an acceptance would be sufficient for that purpose under the statute; but for actual receipt an external test, of which intent of the parties cannot wholly supply the place, is necessary. Custom might, however, indicate assent to regard a delivery to a third person or at a particular place as a receipt by the buyer, and in Calvert v.

Schultz, seems to have done so. The court was doubtless influenced by the fact that the goods were not actually moved and the whole transaction rested in parol. See infra, § 553. It does not invalidate receipt that the delivery was made not directly by the seller but by a third person on his order. First Nat. Bank v. Geske, 85 Wash. 477, 148 Pac. 593, Ann. Cas. 1917 B. 564.

62 See Van Boskerck v. Torbert, 184 Fed. 419, 107 C. C. A. 383, Ann. Cas. 1916 E. 171, where a series of contracts for the sale of flour were made, and the question was raised to what contract a particular delivery of flour was to be applied.

63 Tempest v. Fitzgerald, 3 B. & Ald. 680.