500 DELIVERY OF SAMPLES. 



as his assignees, are liable, they having claimed it as the property of the 

 bankrupt." 



Where goods are sold by sample, the handing over the samples to 

 the buyer does not, in the absence of. evidence of a usage or custom 

 to the contrary, amount to a delivery and acceptance of part of the 

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

 of Frauds ; lut it is otherwise wliere the huijer draws samples from the 

 bulk after he has jmrchased the goods. The latter was the case in 

 Gardner v. Grout, which was an action for a breach of contract to 

 deliver 24^ tons of sacks and bags, which the defendant had agreed 

 to sell to the plaintiff at £11 per ton. A verbal contract was proved 

 in the terms alleged in the declaration, but there was no contract in 

 writing or any part acceptance. The plaintiff relied, in order to take 

 the case out of the Statute of Frauds, on a part delivery and ac- 

 ceptance, which was supported by the following evidence : Four days 

 after the sale the plaintiff went to the defendant's warehouse, and 

 asked for samples of the sacks and bags, which were given to him 

 by the defendant's foreman, and which he promised to pay for when 

 the bulk (which was all there at the time) was taken away. The 

 samples so given to the plaintiff were, by the defendant's order, weighed 

 and entered ; and the jury found that they were delivered and accepted 

 as part of the bulk, and gave the plaintiff a verdict for £40, which the 

 Oouit of Common Pleas refused to disturb. Hodgson v. Le Brett and 

 Anderson v. Scott are anthorities to show that if a person selects and 

 puts a mark on a particular article, intending to take possession of it as 

 his own property, that is evidence for the jury of an acceptance. 

 Ealdey v. Parker only decides that, under the circumstances, there was 

 no acceptance and receipt. It is an authority to show that the selecting 

 ])articular articles does not amount to a receipt within the statute, 

 bat is merely an agreement that the property in the specific articles 

 shall pass. At common law, the property would pass by the contract 

 of bargain and sale ; but in order to satisfy the statute, there must 

 be either a part payment or an acceptance and receipt of goods. In 

 Hanson v. Armitage there was no acceptance by the buyer of the goods. 

 In the case of Smith v. Hughes, 6 L. E. Q. B. 597, the plaintiff showed 

 the deiendant a sample of oats ; the defendant took the sample away 

 with him, and afterwards wrote to the plaintiff to the effect that he 

 would take the oats. According to the defendant's version of the 

 story, the plaintiff had said they were "old" oats; this, however, 

 the plaintiff denied. The oats, in fact, were new, and the defendant 

 refused to take them. Held that the defendant was bound by his 

 contract. 



