a difference if the buyer designated the carrier by which the goods were sent.82 This distinction, however, is obviously unsound, for unless the carrier were designated by the buyer expressly or impliedly, or unless the seller were given authority to select the carrier, the title to the goods would not pass at common law and there would be no need of raising any question about the statute. The carrier would not be the agent to receive for the buyer, much less the agent to accept. And even though the carrier be specially named by the buyer, it is still true that though the carrier has authority to receive for the buyer, he has not authority to accept. The agency of the carrier is to receive and carry goods, not to decide whether they conform to the contract or offer. Accordingly it is generally agreed now that even though the carrier is particularly designated by the buyer, delivery of the goods to him does not satisfy the statute.83 It should be observed, however, that if the goods are identified by the buyer's order, or contract, and not merely by the seller's appropriation, this constitutes acceptance; and the subsequent delivery of these goods to an authorized carrier, consigned to the buyer, being a receipt, the statute is satisfied.84 If the goods when shipped are consigned v. Cyr, 134 Mich. 233, 96 N. W. 26; Grimes v. Van Bechten, 20 Mich. 410; Rindskopf v. De Ruyter, 39 Mich. 1, 33 Am. Rep. 340; Smith v. Brennan, 62 Mich. 349, 28 N. W. 892, 4 Am. St. Rep. 867; Calvert v. Schultz, 143 Mich. 441, 106 N. W. 1123; Simmons Hardware Co. v. Mullin, 33 Minn. 195, 22 N. W. 294; Fontaine v. Bush, 40 Minn. 141, 41 N. W. 465, 12 Am. St. Rep. 722; Waite v. McKelvy, 71 Minn. 167, 73 N. W. 727; Salomon v. King, 63 N. J. L. 39, 42 Atl. 745; Shepherd v. Pressey, 32 N. H. 49, 55; Standard Wall Paper Co. v. Towns, 72 N. H. 324, 56 Atl. 744; Rodgers v. Phillips, 40 N. Y. 519; Allard v. Greasert, 61 N. Y. 1; Fein v. Weir, 129 N. Y. App. D. 299, 114 N. Y. S. 426 (affd. 199 N. Y. 540, 92 N. E. 1084); Hudson Furniture Co. v. Freed Furniture & Carpet Co., 10 Utah, 31, 36 Pac. 132. See, however, the contrary decision of Strong v. Dodds, 47 Vt. 348. In Iowa where the statute does not require acceptance it has been held that delivery to a carrier under the circumstances suggested satisfies the statute. See supra, § 540, n. 1. 82 Rodgers v. Phillips, 44 N. Y. 519, by Daniels, J.; Spencer v. Hale, 30 Vt. 314, 73 Am. Dec. 309. 83 United Hardware Furniture Co. v. Blue, 59 Fla. 419, 52 So. 364, 35 L. R. A. (N. S.) 1038; Jones v. Mechanics' Bank, 29 Md. 287, 96 Am. Dec. 533; Smith v. Brennan, 62 Mich. 349, 28 N. W. 892, 4 Am. St. Rep. 867; Fontaine v. Bush, 40 Minn. 141, 41 N. W. 465, 12 Am. St. Rep. 722; Rodgers v. Phillips, 40 N. Y. 519, by Woodruff, J.; Allard v. Greasert, 61 N. Y. 1. 84 Ullman v. Barnard, 7 Gray, 554; Cross v. O'Donnell, 44 N. Y. 661, by the seller to his own order, though the bill of lading is indorsed and sent forward with a draft for the price, delivery to the carrier is no receipt by the buyer, and, therefore, though the goods were identified and assented to before shipment, the statute is not satisfied.85 If the goods arrive at their destination and the buyer sends a truckman to haul them to the buyer's place of business, even then there may be no acceptance, for the buyer's dealing with the goods is as consistent with a temporary possession for the purpose of inspection as with an assumption of ownership.86 § 557. Receipt of goods in the hands of buyer. 87 It sometimes happens that at the time of a bargain the goods in question are already in the possession of the buyer. Under these circumstances the goods will generally be identified and no difficulty can arise in regard to acceptance. As the buyer has possession it would seem proper to hold that he has also actual receipt of the goods. This is well settled in England and the English rule has been followed in the United States.88 It will be observed, however, that these cases are obnoxious to the New York rule, to which reference has been made above,89 for the whole transaction rests in parol. Accordingly, several decisions of the lower courts in New York have held, under such circumstances, that the statute was not satisfied; 4 Am. Rep. 721. But not if the seller refuses to let the car in which the goods are loaded go forward until the goods are paid for. Scully v. Smith, 110 N. Y. App. Div. 88, 96 N. Y. S. 998. Delivery of identified goods to a third person other than a carrier, if in accordance with the buyer's order satisfies the statute. Munroe v. Mundy, 164 Ia. 707, 146 N. W. 819. 85 Fort Worth Packing Co. v. Consumers Meat Co., 86 Md. 635, 39 Atl. 746. 86 Standard Wall Paper Co. Towns, 72 N. H. 324, 56 Atl. 744. v. 87 Edan v. Dudfield, 1 Q. B. 302. 88 Wilson v. Hotchkiss, 171 Cal. 617, 154 Pac. 1; Devine v. Warner, 75 Conn. 375, 379, 53 Atl. 782, 96 Am. St. Rep. 211, 76 Conn. 229, 56 Atl. 562; Couillard v. Johnson, 24 Wis. 533; Snider v. Thrall, 56 Wis. 674, 14 N. W. 814. See also Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104; Norton v. Simonds, 124 Mass. 19. 89 See § 554. 90 Dorsey v. Pike, 50 Hun, 534; Follett Wool Co. v. Utica Trust Co., 84 N. Y. App. Div. 151; Linde v. Huntington, 37 N. Y. Misc. Rep. 212, 75 N. Y. S. 161. In the case last cited the goods had been put into the possession of a prospective buyer for examination, and after temporary examination the buyer declined the goods; but later when the buyer offered to sell and these decisions must probably be regarded as approved by the Court of Appeals.91 § 558. Receipt of goods in the hands of seller. As has been previously seen 92 acceptance cannot be made by the seller himself acting as agent for the buyer, and as will hereafter be seen one party cannot be the agent for the other to sign a memorandum under the statute.93 By analogy it might be supposed that the seller could not act as agent or bailee for the buyer in such a way as to constitute a receipt of the goods. Under what has been called the New York rule, which requires more than mere words in order to satisfy the statute, this result is practically reached; for where the seller holds possession of the goods after the sale for the buyer, there is generally no outward dealing with the goods to indicate the change of ownership; they simply remain where they have been, but the seller has agreed to hold them in a different capacity.94 Accordingly, some decisions may be found which for a lower price than at first the buyer accepted. In the other cases in this note the buyer was in possession by virtue of a previous arrangement disconnected with the ultimate sale. 91 It is true that in Bristol v. Mente, 79 N. Y. App. Div. 67, 80 N. Y. S. 52; affd., without opinion, 178 N. Y. 599, 70 N. E. 1096, the majority of the court, without citing the earlier decisions, held that where part of the goods had been sent to the buyer for his examination, and he subsequently had agreed to buy the goods thus in his possesssion, there was an acceptance and receipt of part of the goods within the meaning of the statute. But in Young v. Ingalsbe, 138 N. Y. App. D. 587, 122 N. Y. S. 707, 151 N. Y. App. D. 375, 135 N. Y. S. 939, 208 N. Y. 503; 102 N. E. 590, without referring to its previous decision the court held a sale by a tenant in common to another who was in possession and remained in possession was unenforceable. The distinction which probably would be drawn is that in the earlier case the possession was transferred with reference to a possible sale. No such limit was, however, recognized by the lower court in Linde v. Huntington, 37 N. Y. Misc. 212, 75 N. Y. S. 161. In Silkman Lumber Co. v. Hunholz, 132 Wis. 610, 112 N. W. 1081, 11 L. R. A. (N. S.) 1186, a sale of lumber which was at the time of the sale in a portion of the seller's lumber yard occupied by the buyer under a license, was held within the statute, and the doctrine of Shindler v. Houston, 1 N. Y. 261, 49 Am. Dec. 316, approved. 92 Supra, § 548. 94 But in Walker v. Malsby Co., 134 Ga. 399, 67 S. E. 1039, 1041, the court. through saying "something more than the parol agreement of sale relating to rhe transfer of the title and the possession is necessary to constitute constructive delivery," adds that though some "act" is necessary, "It is no ob deny broadly that the seller can receive for the buyer.95 Such decisions, however, are at variance with the English law. The early decisions seem to have gone almost to the length of holding that the mere making of a bargain and assenting to the transfer of the property in specified goods, of itself, operated as a receipt, since the seller thereby became bailee for the buyer by operation of law;96 but later, though the possibility was still admitted of actual receipt taking place while the seller still retained the goods, it was held that unless the seller had surrendered the lien allowed an unpaid vendor and held wholly as bailee for the buyer, there was no receipt within the statute. The same test has been adopted in jurisdictions which do not adopt the New York requirement of something other than words. 98 The seller in possession will rarely have parted with his lien unless he has either been paid or has given credit. In either of these events, without any express words, it seems that the holding of the seller is necessarily wholly as agent for the buyer, and if it be admitted that the seller may act as the buyer's agent to receive, there seems no reason to question that there has been an actual receipt. Moreover, as payment satisfies the statute," jection that such act be done by the vendor as the agent of the vendee." E. g., as in Tift v. Wight & Welosky Co., 113 Ga. 681, 39 S. E. 503, by segregating the goods and marking them with the purchaser's name. 95 Brunswick Grocery Co. v. Lamar, 116 Ga. 1, 42 S. E. 366. (Cf. preceding note.) See also Ficklin v. Tinder, 161 Mo. App. 283, 143 S. W. 853. 96 Chaplin v. Rogers, 1 East, 192, note; Anderson v. Scott, 1 Campb. 235, note; Hodgson v. Le Bret, 1 Campb. 233; Elmore v. Stone, 1 Taunt. 458; and Blenkinsop v. Clayton, 7 Taunt. 597. In Blackburn, Contract of Sale (1st ed.), p. 33, after referring to these decisions, the author says: "In all these cases there seems to have been ample evidence of an acceptance of the goods but scanty evidence of any actual receipt, if by that is to be understood a taking of receipt, where the goods have possession; indeed, in Blenkinsop v. Clayton, as reported, there seems to have been none. After the decision of that last case, the current of authority set the other way." 97 Tempest v. Fitzgerald, 3 B. & Ald. 680; Bill v. Bament, 9 M. & W. 36; Lillywhite v. Devereux, 15 M. & W. 285; Marvin v. Wallis, 6 E. &. B. 726. 98 Ex parte Safford, 2 Low. 563; Terney v. Doten, 70 Cal. 399, 11 Pac. 743; Devine v. Warner, 76 Conn. 229, 56 Atl. 562; Edwards v. Brown, 98 Me. 165, 56 Atl. 654; Safford v. McDonough, 120 Mass. 290; Rodgers v. Jones, 129 Mass. 420; Kirby v. Johnson, 22 Mo. 354; Sotham v. Weber, 116 Mo. App. 104, 92 S. W. 181; Clark v. Labreche, 63 N. H. 397; Reinhart v. Gregg, 8 Wash. 191, 193, 35 Pac. 1075; Janvrin v. Maxwell, 23 Wis. 51. 99 Infra, § 565. been paid for, is immaterial. The fact that at the expiration of the period of credit the lien will revive if the price has not been paid is immaterial. In the meantime the right of the buyer to demand the goods has been absolute, and actual receipt, for however short a period, is enough.1 In regard to the sufficiency of the test provided by the sellers' lien, it should also be observed that by contract in many jurisdictions the seller may reserve an equitable lien independent of actual possession; but such a lien will not, of itself, prevent actual receipt by the buyer.2 § 559. Symbolic receipt. It is not always possible in the case of bulky goods, or goods at a distance, for the seller to transfer possession of the goods themselves immediately and, under the Statute of Frauds as well as in other branches of the law of sales, where delivery is impossible, the delivery of the symbol has in some cases been recognized as sufficient. The typical case always given is the delivery of a key of a room, or building, in which the goods are stored. Likewise where iron was lying in a separate 1 Kelly v. Brooks, 25 Ala. 523. 2 Dodsley v. Varley, 12 A. & E. 632. In this case the goods after the purchase were deposited on the premises of a third person, an agreement being made that they should not be removed by the buyer until paid for. The buyer exercised various rights of ownership over the goods where they were stored and the court held there was actual receipt, saying: "We think that, upon this evidence, the place to which the wools were removed must be considered as the defendant's warehouse, and that he was in actual possession of it there as soon as it was weighed and packed; that it was thenceforward at his risk, and if burned must have been paid for by him. Consistently with this, however, the plaintiff had not what is commonly called a lien, determinable on the loss of possession, but a special interest, sometimes, but improperly, called a lien, growing out of his original ownership, independent of the actual possession, and consistent with the property being in the defendant. This he retained in respect of the term agreed on, that the goods should not be removed to their ultimate place of destination before payment. But this lien is consistent, as we have stated, with the possession having passed to the buyer, so that there may have been a delivery to and actual receipt by him. This, we think, is the proper conclusion upon the present evidence; and there will be no rule." Atwell v. Miller, 6 Md. 10, 61 Am. Dec. 294; Shindler v. Houston, 1 N. Y. 261, 49 Am. Dec. 316; Gray v. Davis, 10 N. Y. 285. See also Vining v. Gilbreth, 39 Me. 496; Packard v. Dunsmore, 11 Cush. 282; Wilkes v. Ferris, 5 Johns. 335, 4 Am. Dec. 364; Barr v. Reitz, 53 Pa. St. 256. In the cases last cited the question of deliv |