4-96 DELIVEEY TO SATISFY STATUTE OF FRAUDS. 



cliaser as io (hprivp him of an}/ rif/J/f to olijrri lo ilic qvaniity m- qvalily of 

 the iiooih, or lo (Irpriro the .sfj/py of J/ is riijld of ?/>;?, tliere cannot be any 

 part acceptauce to satisfy tliu 4tli suction of the statute," {Smith v. Sur- 

 nuiti). 



A some-what nice qacstion as to what teas a delivery to satisfy the 

 nth scrtiun of the Statute of Frauds arose in Gorman v. Boddy. The 

 defendant gave the plaintiff a written order for ten firkins of butter, 

 which he directed to be sent to him by a certain conveyance. Instead 

 of ten fiirkins twelve were sent, and the defendant refused to receive 

 them. The carrier said that his general practice was never to deliver 

 part only of a parcel of goods. The tvv-elve firkins were never in de- 

 fendant's shop ; but while they stood in the street he drew a sample 

 fi-om a firkin, and said that it was inferior. The carrier then put the 

 goods into his cart, and sent them back by railway ; and an action was 

 brought for goods sold and -delivered. In summing up, CressiveJl J. 

 said : " At that time the possession of the goods was in the carrier, and 

 he might perhaps maintain trespass against the defendant for doing as 

 he did. But that will not help you. How can you make out that 

 these goods were delivered to the defendant ? They were sold ; but I 

 do not think that you have proved a delivery. The defendant never got 

 the butter, there was therefore no actual delivery to him ; nor was there 

 any delivery to the carrier, as the defendant's agent. I do not see that 

 the carrier was his agent to receive more than ten firkins. The delivery 

 of the ten firkins, therefore, to the carrier, with two others, as one 

 iKircct, was a delivery in respect of which the carrier was not the defend- 

 ant's agent ; and it thus appears that there w^as no delivery of the goods 

 to the defendant at all, and consequently there could be no acceptance 

 thereof by liim, so as to satisfy the 17th section of the Statute of 

 Frauds." The plaintiff was nonsuited. Respecting the delivery to a 

 carrier, it was observed by Parl^e B. in Johnson v. Dodgson, that " such 

 delivery may be a delivery to the defendant ; but the acceptance of the 

 carrier is not an acce})tance by him. Tlie old cases in which it had been 

 said that a receipt by a carrier was an acceptance to satisfy the statute, 

 were overruled by Hoii:e v. Palmer ; wA Hanson v. Armitage." And 

 per Lord Alinger C.B. : " If, to take the strongest case, the purchaser 

 sent his own servant for the goods, and when they were brought sent 

 them back as not answering the contract, he could not be said to accept 

 Uiem " (ih.). 



Chaplin v. Ptogers is a leading case as to what constitvtes a delivery. 

 The parties were in the plaintiff's farm-yard, and the defendant, after 

 objecting to the quality of a stack of hay (particularly the inside part) 

 in the yard, agreed to take it at 2s. Q>d. per cwt. Soon after, he sent a 



