14 



CONTRACTS CONCERNING HORSES, ETC. 



out of a larger 

 bulk. 



Vendee dis- 

 posing of 

 goods. 



Goods sold by 

 sample. 



More articles 

 sent than 

 ordered. 



]iot buy it until it is separated from tlie rest, and there 

 must be an acceptance after the separation (i'). He must 

 have an opportunity of refusing what the vendor may 

 have selected. In some cases possibly an a priori assent 

 may be enough (;^•), but the general principle deducible 

 from the decisions is that the acceptance must be after the 

 purchaser has exercised his option, or has done something 

 to preclude him from so doing ; and {y) until he is so 

 precluded he cannot be said to have accepted them within 

 the meaning of the statute {z). But where goods are 

 delivered to the vendee, any objection on account of non- 

 compliance with the order or otherwise must be made* 

 within a reasonable time, otherwise the vendee will be 

 considered to have accepted them {a). It is for the reason 

 that the vendee cannot be said to have accepted goods 

 which he has not had an opportunity of rejecting, that the 

 delivery to a carrier is a delivery to and an acceptance by 

 the consignee only where the goods are specific and 

 ascertained (/>). 



But where a vendor has recognized the right of his 

 vendee to dispose of goods remaining in the actual posses- 

 sion of the vendor, he cannot defeat the right of a person 

 claiming under the vendee, on the ground that no proj)erty 

 passed to the latter by reason of the want of a specific 

 appropriation of the goods {c). 



Where goods are sold by sample, the handing over the 

 samples to the buyer does not, in the absence of evidence 

 of an usage or custom to the contrary, amount to a de- 

 livery and acceptance of a part of the thing sold ; but it is 

 otherwise, where the buyer draws samples from the bulk 

 after he has purchased the goods {d). 



If a person orders one article, and two are put upon 

 him, there is no delivery until both parties agree upon the 

 particular one, so that there may be one which the buyer 



(y) Ca»ijjbeU v. Mersey Docks, 14 

 C. B., N. S. 412. 



{x) AMridije v. Johiiso», 2G L. J., 

 Q. B. 296, per Campbell, C. J. ; 

 Langton v. Higgins, 28 L. J., Ex. 

 252 ; and see Kibble v. Gough, 38 

 L. T., N. S. 204, C. A., where 

 defendant's foreman received goods 

 and gave a receipt marked ' ' not 

 equal to sample," and it was held 

 that there was sufficient evidence 

 of an accejitance. See also Sinith 

 V. Hudson, 34 L. J., Q. B. 145. 



(y) mint V. Etcht, 22 L. J. 295 



(Ex.). Much of what was said in 

 Morton v. Tibbelt, 15 Q. B. 428, 

 doubted in this case. 



(:;) Xorman v. FhllUps, 14 M. & 

 W. 283. 



{a) Coleman v. Gibson, 1 M. & 

 Eob. 168. 



{b) Coombs V. Bristol and Exeter 

 R. Co., 27 L. J., Ex. 401 ; and see 

 Benjamin on Sales, 2od ed. 135. 



{c) iroodleg v. Corentrij, 32 L. J., 

 Ex. 185. 



{d) Gardner v. Grout, 2 C. B., 

 N. S. 340. 



