WHAT CONSTITUTES A DELIVERY OF GOODS. 497 



farmer to look at it, and his opinion was unfavourable. In the course 

 of t^YO months a farmer called Loft agreed with the defendant to pur- 

 chase some of the hay still standing untouched in the plaintiff's yard ; 

 and the defendant told Loft to go there, and ask what condition it was 

 in, saying he had only agreed for it if it were good. The plaintiff 

 having informed Loft it was in a good state, the latter agreed to give 

 the defendant 3s. dd. per cwt. for it, the defendant having told him 

 that he had agreed to give the plaintiff Ss. 6d. for it. Loft brought 

 away 36 cwt., but without the knowledge, and against the direction, of 

 the defendant. The evidence as to the quality of the hay, when the 

 stack was afterwards cut, was contradictory. It was objected for the 

 defendant that the contract of sale was fr-audulunt and void by the 

 vStatute of Frauds, being for the sale of a commodity no part of which 

 was delivered, and of which there was no acceptance by the defendant ; 

 but Iloiltam B. left it to the jury to decide whether the sale had been 

 fraudulent, and whether, under the circumstances, there had been an 

 acceptance by the defendant ; and they found for the plaintiff on both 

 points, and gave him £50 damages, being the value of the hay at the 

 price agreed for. A rule for a new trial, on the grounds that the 

 learned judge had left that as a question of fact to the jury which he 

 himself ought to have decided as an objection in point of law arising 

 on the Statute of Frauds, and that the evidence did not warrant the 

 verdict, was discharged. Lord Ken//07i'C.J. said : "I do not mean to 

 disturb the settled construction of the statute, that in order to take a 

 contract for the sale of goods of this value out of it there must be either 

 a part delivery of the thing or a part payment of the consideration, or 

 the agreement must be reduced to writing in the manner therein speci- 

 fied. But I am not satisfied in this case that the jury have not done 

 rightly in finding the fact of a delivery. Where goods are ponderous, 

 and incapable, as here, of being handed over from one to another, there 

 needed not be an actual delivery ; but it may be done by that which is 

 tantamount, such as the delivery of the key of a warehouse in which 

 the goods are lodged, or by delivery of other indicia of property. Now 

 here the defendant dealt with this commodity afterwards as if it were 

 in his actual possession, for he sold part of it to another person. 

 Therefore, as upon the whole justice has been done, the verdict ought 

 to stand." 



This case was relied on for the plaintiff in Maberley v. Bhcppard 

 where the defendant employed plaintiff to construct a waggon, and 

 while the vehicle was in the plaintiff's yard, unfinished, bought iron- 

 work and a tilt of a man, who assisted plaiutiff's workmen to fix it. 

 It was contended that the defendant must be thus taken to have exer- 



