4 mass and the seller said, "I deliver this iron to you." Similar words in regard to logs floating in a stream are sufficient. So where cattle are running on a range, branding them and turning them loose again is sufficient. A growing crop has also been held capable of such a transfer of possession as to satisfy the statute. In these cases it will be observed that though the goods themselves are not changed from the position which they occupied before the bargain, that position is one which puts the goods as fully in the actual physical control of the buyer as of any other person; but cases may be supposed where this is not true. For instance, where goods are at sea no actual delivery is possible, but the goods are in the possession of the captain of the vessel, who for this purpose is the agent of the seller. It may be doubted whether in such a case there can be actual receipt of the goods by the buyer without a negotiable bill of lading, although there are doubtless decisions holding that there is a delivery so far as to satisfy common-law requisites of delivery between buyer and seller, or even so far as to bind creditors of the seller. § 560. Documents of title. By far the most important kind of symbolic delivery is that made by bills of lading and warehouse receipts. There are surprisingly few cases raising the question, but upon principle it seems clear that delivery of a non-negotiable document of title, though frequently called symbolic delivery, in cases not involving the Statute of Frauds, can hardly be considered as actual receipt of the goods by the buyer. If the buyer is the consignee or person to whom delivery is to be made according to the terms of the document, and the buyer has authorized or ratified this, there is actual receipt by the bailee on behalf of the buyer, by virtue of the shipment, not by virtue of the ery did not relate to the Statute of Frauds. 4 Calkins v. Lockwood, 17 Conn. 154, 42 Am. Dec. 729. Leonard v. Davis, 1 Black, 476, 17 L. Ed. 222; Boynton v. Veazie, 24 Me. 286; Jewett v. Warren, 12 Mass. 300, 7 Am. Dec. 74; Carter v. Willard, 19 Pick. 1. Walden v. Murdock, 23 Cal. 540, 83 Am. Dec. 135. 7 Farmers' Savings Bank v. Newton, 154 Iowa, 49, 134 N. W. 436. The Iowa statute, however, simply requires "delivery." See supra, § 556. delivery of the document to the buyer. But if the document is not in this form, the goods are in the possession of a bailee who, until he attorns to the buyer, is an agent for the seller, and his possession is the seller's possession. If, however, a document of title is negotiable or quasi-negotiable there seems no reason to doubt that the indorsement and delivery of the document may be a receipt of the goods. The meaning of such negotiability, primarily, is: That the obligor, that is, the bailee, is directly bound by contract to the assignee of the document Bentall v. Burn, 3 B. & C. 423; Farina v. Home, 16 M. & W. 119. In the former of these cases the court said of a delivery order: "There could not have been any actual acceptance of the wine by the vendee until the dock company accepted the order for the delivery, and thereby assented to hold the wine as the agents of the vendee. They held it originally as the agents of the vendors, and as long as they continued so to hold it the property was unchanged. It has been said that the London Dock Company were bound by law, when required to hold the goods on account of the vendee. That may be true, and they might render themselves liable to an action for refusing so to do; but if they did wrongfully refuse to transfer the goods to the vendee, it is clear that there could not then be any actual acceptance of them by him until he actually took possession of them." And in the latter case, Parke, B., said of a dock warrant: "This warrant is no more than an engagement by the wharfinger to deliver to the consignee or any one he may appoint; and the wharfinger holds the goods as the agent of the consignee (who is the vendor's agent), and his possession is that of the consignee until an assignment has taken place, and the wharfinger has attorned, so to speak, to the assignee, and agreed with him to hold for him. Then, and not till then, the wharfinger is the agent or bailee of the assignee, and his pos session that of the assignee, and then only is there a constructive delivery to him. In the meantime the warrant, and the indorsement of the warrant, is nothing more than an offer to hold the goods as the warehouseman of the assignee." So in Boardman v. Spooner, 13 Allen, 353, the acceptance of a bill of goods stored in a general warehouse and an order for their delivery without notice to the warehouse were held insufficient to satisfy the statute. See also Quintard v. Bacon, 99 Mass. 185. See, however, Wadhams v. Balfour, 32 Or. 313, 51 Pac. 642. In Rodgers v. Phillips, 40 N. Y. 519, the court remarked: "Assuming, as it may properly be done, that the acceptance of the bill of lading by the defendants under ordinary circumstances would have been equivalent to the acceptance of the property mentioned in it, yet that I could not be the effect of it where, as in this case, the property had been previously lost." In Lewis-SimasJones Co. v. C. Kee & Co., 27 Cal. App. 135, 148 Pac. 973, the court held delivery to a buyer of an order on a warehouseman who had issued to the seller a non-negotiable receipt under the Uniform Warehouse Receipts Act, amounted to acceptance and actual receipt of the goods. The court seems to have thought that prior decisions indicating that enough had been done to transfer title proved that the statute had been satisfied. See further, § 556. immediately upon its assignment-no attornment being necessary. He is, therefore, agent of the buyer as soon as the buyer becomes the indorsee of the document.10 § 561. Part of the goods. By the terms of the statute acceptance and receipt of part of the goods suffice, and it is immaterial how small the part may be. It is, therefore, sufficient if the buyer receives a sample of the goods, provided the sample is part of the bulk; that is, if it diminishes the quantity of goods subsequently to be delivered to the buyer." But otherwise where the sample is merely to show what the goods are like. 12 A sample given merely for the purpose of examination is of course insufficient. 13 It is immaterial when the part is received and an executory contract for unspecified goods may be made binding by the specification and acceptance and receipt of a portion of the goods under this contract, though the remainder is unspecified.14 It is essential in order to make acceptance and receipt of part suffice, that the part be accepted and received as only a part of the goods. So that if the buyer when taking part declines to take more, the statute is not satisfied; nor is it satisfied if the seller in delivering part of the goods repu 10 Audenried v. Randall, 3 Cliff. 99; Mueller v. Guye, 12 Mo. App. 588; Wadhams v. Balfour, 32 Or. 313, 51 Pac. 642. In Wadhams v. Balfour the receipt does not seem to have been negotiable, but the court held its delivery sufficient. In Meredith v. Meigh, 2 E. & B. 364, the court intimates that retention by the consignee, of a bill of lading might satisfy the statute. 11 Hinde v. Whitehouse, 7 East, 558; Gardner v. Grout, 2 C. B. (N. S.) 340; Gilliat v. Roberts, 19 L. J. Ex. 410; Scott v. T. W. Stevenson Co., 130 Minn. 151, 153 N. W. 316; Moore v. Love, 57 Miss. 765; Brock v. Knower, 37 Hun, 609. 12 Morton v. Tibbett, 15 Q. B. 428; Dierson v. Petersmeyer, 109 Iowa, 233, 80 N. W. 389; Richardson v. Smith, 101 Md. 15, 60 Atl. 612, 70 15 L. R. A. 321, 109 Am. St. Rep. 552; 13 Mechanical Boiler Co. v. Kellner, 62 N. J. L. 544, 43 Atl. 599. 14 Scott v. Eastern Counties Ry. Co., 12 M. & W. 33; Cavanaugh v. D. W. Ranlet Co., 229 Mass. 366, 118 N. E. 650; Crystal Ice Co. v. Holliday, 106 Miss. 714, 64 So. 658; Rickey v. Tenbroeck, 63 Mo. 563; Gabriel v. Kildare Elevator Co., 18 Okla. 318, 90 Pac. 10; Garton Toy Co. v. Buswell Lumber & Mfg. Co., 150 Wis. 341, 136 N. W. 147. See, however, May v. Ward, 134 Mass. 127; Ladnier v. Ladnier, 90 Miss. 475, 43 So. 946. 15 Atherton v. Newhall, 123 Mass. 141, 25 Am. Rep. 47. See also Dixon v. Yates, 5 B. & Ad. 313; Pratt v. Chase, 40 Me. 269, 273. diates the remainder of the bargain. 16 But where part of the goods was taken by the buyer into his control after the destruction of the remainder, this act of the buyer was held sufficient to render him liable for all the goods.17 If an agent selling goods for his principal agrees to throw in goods of his own in order to induce the buyer to enter the bargain, and the latter goods are delivered, the statute is not satisfied as to the other goods.18 Other decisions involving an acceptance and receipt of part of the goods, are given in the note below.19 § 562. Choses in action. Most of the statutes which specifically include choses in action within the statute also mention acceptance and actual receipt of the evidences of the choses in action as a method of satisfying the statute, but even where evidences of the choses in action are not mentioned there can be no doubt that delivery of any document which is customarily regarded as representing the choses in action would be sufficient. Thus the acceptance and receipt of a stock certificate would satisfy the statute so far as a contract to sell stock is concerned. 20 How far beyond the case of a document courts might go is doubtful. In Jones v. Reynolds 21 a model of an invention as yet unpatented was delivered, and this was held sufficient to satisfy the statute when the invention was sold. In regard to choses in action having no tangible evidence, the method satisfying the statute 16 See Garton Toy Co. v. Buswell Lumber Mfg. Co., 150 Wis. 341, 136 N. W. 147. Cf. infra, § 573. 17 Goddard v. Demerritt, 48 Me. 211; Townsend v. Hargraves, 118 Mass. 325. These decisions seem sound for the statute is satisfied according to its terms, and though the buyer may not have contemplated making himself liable for the whole, he did not repudiate the contract and his liability necessarily follows. See also Vincent v. Germond, 11 Johns. 283, and supra, § 550. 18 McCormick Harvesting Co. V. Cusack, 116 Mich. 647, 74 N. W. 1005. There were necessarily two sales, one by the principal and one by the agent. See Tompkins v. Sheehan, 158 N. Y. 617, 53 N. E. 502. 19 Elliott v. Thomas, 3 M. & W. 170; Hess v. Dicks, 181 Ia. 342, 164 N. W. 639; Krippendorf-Dittman Co. v. Hunt-Riddick Merc. Co. (Mo. App.), 190 S. W. 44; MacEvoy v. Aronson, 46 N. Y. Misc. Rep. 622, 92 N. Y. S. 724; Patterson v. Sargent &c. Co., 83 Vt. 516, 77 Atl. 338, 138 Am. St. Rep. 1102. 20 Berwin v. Bolles, 183 Mass. 340, 67 N. E. 323. 1 120 N. Y. 213, 24 N. E. 279. by acceptance and actual receipt is not suitable and resort must be had to the other methods prescribed. § 563. Acceptance and receipt present questions of fact. It is for the jury to determine in a doubtful case whether there has been acceptance and receipt.22 If, however, there is no evidence justifying the jury in finding more than one way, the court may properly decide the question.23 § 564. "Or give something in earnest to bind the contract." At the present day, earnest as distinguished from part payment is seldom or never given. Formerly a small payment was sometimes made to bind the bargain which was not regarded as part of the price. 24 This would perhaps still be binding and satisfy the statute, but the possibility of earnest as distinguished from part payment is now of little practical importance.24 The only question that has arisen in modern times in regard to the meaning of earnest is whether a sum of money deposited with a third person as a forfeit to secure the performance of a bargain, but not to be applied as part payment is earnest within the meaning of the statute. It was held not to be. 25 If money 22 Edan v. Dudfield, 1 Q. B. 302; Lillywhite v. Devereux, 15 M. & W. 285; Morton v. Tibbett, 15 Q. B. 428; Hinchman v. Lincoln, 124 U. S. 38, 48, 8 S. Ct. 369, 31 L. Ed. 337; Waite v. McKelvy, 71 Minn. 167, 73 N. W. 727; Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331; Lauer v. Richmond Institute, 8 Utah, 305, 31 Pac. 397; Becker v. Holm, 89 Wis. 86, 61 N. W. 307. 23 Hinchman v. Lincoln, 124 U. S. 38, 48, 8 S. Ct. 369, 31 L. Ed. 337; Richardson v. Smith, 101 Md. 15, 60 Atl. 612, 70 L. R. A. 321, 109 Am. St. Rep. 552. 24 See Bach v. Owen, 5 T. R. 409, where the buyer paid a halfpenny to bind the bargain, and this was held sufficient to transfer the property in the horse which was the subject of the sale. 24a See Howe v. Hayward, 108 Mass. 54, 11 Am. Rep. 306; Jennings v. Dunham, 60 Mo. App. 635. 25 Noakes v. Morey, 30 Ind. 103; Howev. Hayward, 108 Mass. 54, 11 Am. Rep. 306; Jennings v. Dunham, 60 Mo. App. 635. In the latter case the court said, at p. 638: "Originally this 'earnest' was not necessarily a part payment. It was a custom under the common law, and seems also to have been a custom in other countries than England to give something to bind a bargain. In some countries some act was performed. Story on Sales, § 273. Benjamin states in his work on Sales, § 196, that one species of earnest in the Roman law was a payment of a sum which if the sale was carried out was to be credited on the price, but which carried the understanding that it was forfeit money |