ACTUAL ACCEPTANCE AND RECEirT. • 501 



The whole tenor of the decision of the Court of Queen's Bench, iti 

 Morton v. Tihhett (which was contrary to some previous dicta, though 

 not to any actual decision), was to the effect that the acceptance and 

 actual receipt of goods, ivlikh make a trritien memorandum unnecessarij 

 under the 11th section of the Statute of Frauds, are not such an accept- 

 ance and receipt as will preclude the purchaser from questimiing the, 

 cpuantitjj or quality of the goods, or in any way disputing the fact of the 

 performance of the contract hy the vendor ; and that the effect of such 

 statutory acceptance and receipt is merely to dispense with the necessity 

 of a written memorandum of the contract. The action was to reco\-er 

 the price of 50 quarters of wheat, which the plaintiff sold to the de- 

 fendant by a sample, and which the latter took away with him. On 

 the 20th of August (next day) the wheat was given to a general carrier 

 and lighterman, Edgeley, who was sent by the defendant, to take it 

 by water from March to Wisbeach ; and on that day the defendant 

 sold the wheat at a profit, by his sample, to one Hampson, at Wis- 

 beach market. The wheat reached Wisbeach on the 28th, and was 

 tendered by Edgeley to Hampson on the 29th ; but he refused to take 

 it, on the ground that it did not correspond with the sample ; and 

 notice of this refusal was given to the defendant, who had never seen 

 or examined the wheat by proxy ; and on the 30th of August he wrote 

 to the plaintiff, repudiating his contract, on the same grounds. The 

 defendant objected that, as there was no memorandum in writing of 

 the bargain, there was no evidence of acceptance and receipt to satisfy 

 the 17th section of the Statute of Frauds. PollocTc C.B. overruled this 

 objection ; and a verdict was found for the plaintiff, with leave to move 

 to enter a nonsuit, if the .Court should thmk either that there was no 

 evidence of acceptance or receipt, or no such evidence as justified the 

 verdict. 



The Court held that there was evidence to warrant a jury in finding 

 acceptance and actual receipt by the defendant within the meaning of 

 stat. 29 Car. II. c. 3, s, 17. Lord Gamplell C.J. said, in the course 

 of his very elaborate judgment, " As the Act of Parliament expressly 

 makes the acceptance and actual receipt of any part of the goods sold 

 sufficient, it must be open to the buyer to object, at all events, to the 

 quantity and quality of the residue ; and even where there is a sale by 

 sample, that the residue offered does not correspond with the sample. 

 We are, therefore, of opinion that whether or not a delivery of the goods 

 sold to a carrier or any agent of the buyer is sufficient, still there may 

 he an acceptance or receipt ivithin the meaniny of the act without the 

 Ivyer having examined the goods or done anything to preclude him from 

 contending that they do not correspond ivith the contract. The accept- 



