498 EVIDENCE OF ACTUAL ACCEPTANCE. 



cised acts of ownership over the Tvag^yon, and that the exercise of such 

 acts was tantamount to a delivery ; but these things having been 

 done before the waggon was finished, and there being no proof of 

 actual deliveiy, the Court of Common Pleas held that the plaintiff was 

 rightly nonsuited in an action for goods sold and delivered. They 

 thought that " the act proved at the trial was by no means so strong 

 and unequivocal as that which took place in Chaplin v. Rogers, where 

 the purchaser sold part of the hay to a stranger, who actually took it 

 away." 



In Ho7cc V. Palmer the Court of Queen's Bench took a similar view 

 of Chaplin v. Roejers, when it was relied on as an authority for the 

 jilaintiff. There the grower of some tares in Essex sent his nephew 

 with a sample to Romford market, where the defendant agreed to buy 

 12 bushels at £1 per bushel, and to send to plaintiffs farm to take 

 them away. He declined taking the sample, saying he had seen the 

 tares on the plaintiff's premises, and that he had no immediate use for 

 them, and therefore requested that they might remain there until he 

 wanted to sow them, which was agreed to. Accordingly, on the 

 nephew's return, the tares were measured and set apart in the granary, 

 with instructions that the defendant was to have them when he called. 

 The Court did not consider that this was an acceptance by the de- 

 fendant, so as to take the case out of the 17th section of the Statute of 

 Frauds. Baijley J. said : " The tw'O cases cited are distinguishable 

 from tliis. In Chaplain v. Rogers the jury thought that ihere ivas 

 sufficient evidence to draiv the conclusion of an actual acce2)tance, inas- 

 much as the vendee had dealt ivith the hay as his own ; and in Elmore 

 V. Stone the buyer directed expense to be incurred, and the directing 

 of that expense was considered evidence of an acceptance on his part. 

 That case goes as far as any case ought to go, and I think we ought 

 not to go one step beyond it. There is this distinction between that 

 case and this, that there an expense was incurred on account and by 

 direction of the buyer, here there is none ; but I must say, however, 

 that I doubt the authority of that decision." Although the defendant 

 in Hoive v. Palmer professed to have already seen and approved of the 

 tares in bulk when he made the bargain, the circumstances from which 

 the acceptance was inferred in Aldridge v. Johnson were of a much 

 stronger character. 



This was a special case stated in detinue for the recovery of a quantity 

 of barley, with a count in trover. There was an agreement between 

 the plaintiff and one Knight for the exchange of 200 quarters, part of 

 a quantity of barley in bulk on Knight's premises, for a number of 

 bullocks, plaintiff to send his sacks to be filled from the bulk, and on 



