THE ACCEPTANCE AND RECEIPT. 15 



can call his own. Thus, in an action to recover the price 

 of ten hogsheads of claret, it appeared that the defendant 

 having verbally ordered ten hogsheads of the plaintiif, the 

 latter in October sent him fifteen, whereupon the defend- 

 ant wrote to him, stating that he could only take ten on 

 their proving satisfactory, and would hold the other five 

 on account of the plaintiff. To this the plaintiff answered 

 thus, " Whatever suits you best is most acceptable to us. 

 The wine is superior : you will ascertain in the spring if 

 you have room for it." The defendant placed the fifteen 

 hogsheads in the bonded warehouse in his own name, and 

 shortly after tasted and disapproved of the wine, but gave 

 no notice to the plaintiff of his disapproval until April ' 

 following, and in May refused to take any of the wine. 

 It was held by the Court of Exchequer that there was no 

 acceptance of the ten hogsheads, within the 17th section 

 of the Statute of Frauds (e). But in all cases where the 

 goods ordered are sent, together with others not ordered, 

 the vendee would not have a right to refuse to accept 

 any ; though if there is any danger or trouble attending 

 the severance of the two, or any risk that the vendee might 

 be held to have accepted the whole, if he accepted his own, 

 he is at liberty to refuse to accept at all (/) . 



In all cases the acts of the parties, in order to be tan- Accei^tance 

 tamount to a delivery and actual receipt, must be unequi- ™"'^*^ ^^ "^' 

 vocal {(/) ; and therefore, where goods are lodged with a '^l'"^^^^ • 

 warehouseman as agent for the vendor, the mere acceptance 

 and retainer by the purchaser of the warrant or delivery * 

 order will not amount to an actual receipt of the goods so 

 as to bind the bargain {//) ; but to have this effect tlie 

 document must be lodged by the purchaser with the ware- 

 houseman, who must then, as it were, attorn to him, or, in 

 other words, agree to hold the property henceforth as his 

 agent (/). 



THE EARNEST AND PART PAYMENT. 



The civil law called the Earnest " Arr/ia,^' and this it ^wo kinds of 

 interprets to be " emptionis-venditionis, contractor argu- ■^''^^°^®*- 



(6-) CunUfi! V. Jfarrison, 20 L. J., /S'^m;« Co., 33 L. J., Q. E. 214. 

 Ex. 325 ; ,S. C. 6 Ex. 903. (i) J]entaU v. Burn, 3 B. & C. 



(/) Per Byles, J. ; Levy v. Green, 423 ; Farina v. Home, 16 M. & W. 



1 El. & El. 969. 119 ; CitsacJc v. Rohimon, 30 L. J., 



{g) NiehoUe v. Plume, 1 C. & P. Q. B. 261 ; Eart v. Bxsh, 27 L. J., 



272 ; Eden v. Ludfeld, 1 Q. B. 307. Q. B. 271 ; Currie v. Anderson, 29 



[h) M'-Ewmi. V. Smith, 2 H. L. L. J., Q. B. 87; see also Brown v. 



Cas. 309 ; Le Matios v. Calcutta Hare, 27 L. J., Ex. 372. 



