CONTEACTS CONCERNING HORSES, ETC. 



Question for 

 the jury. 



Constructive 

 possession by 

 vendee. 



Seller may 

 become agent 

 for buyer. 



very material, to show the nature of the acceptance when 

 the sheep were received. The defendant says, ' It is all 

 right.' If he had never seen the sheep, and there _ had 

 been no previous acceptance, his saying 'It is all right ^ 

 would have had no effect ; but when he had previously 

 examined and selected the sheep, it was for the jury to 

 say whether he did not mean, ' These are the sheep which 

 I selected.' Suppose, in the case of a remarkable animal, 

 for instance, a horse with peculiar spots, the vendee had 

 said, ' All right,' there could be no doubt he would mean 

 ' This is the horse I bought.' " {z). 



It is a question for the jury whether or not there has 

 been an acceptance and actual receipt (a). 



It has been stated above (b) that there may be an ac- 

 ceptance and receipt by the vendee before the goods are 

 actually delivered by the vendor. Thus, after the defen- 

 dant had verbally agreed to purchase of the plaintiff a 

 horse, but before there had been any actual delivery 

 plaintiff requested defendant to lend it to him to take 

 certain journeys. To this the defendant assented, and the 

 horse remained with plaintiff for a fortnight, when it was 

 sent to the defendant, who, however, refused to receive it : 

 the jury found that the bargain for the pui'chase of the 

 horse was complete before the proposal to borrow it was 

 made, and that the defendant, as owner of the horse, gave 

 plaintiff permission to keep it. It was thereupon held that 

 there was evidence of an acceptance and receipt of the 

 horse to satisfy the Statute of Frauds (c). But the construc- 

 tive possession by the vendee must be clearly such, as that 

 by it the vendor would lose his lien on the goods (d). 



In all cases of this description there may be such a 

 change of character in the seller as to make him the agent 

 of the buyer, so that the buyer may treat the possession 

 of the seller as his own (e) ; and the question for the jury 

 will be, whether the seller held the subject-matter of the 

 sale as owner, or merely as keeper for the buyer. Thus, 

 when A. agreed to purchase of B. a carriage then standing 

 in B.'s shop, A. at the same time desiring that certain 

 alterations might be made on it, the alterations having 



(z) Saunders v. Topp, 4 Ex. 395. 

 See also Simmonds v. Humble, 13 

 C. B., N. S. 258. 



(a) Bitshell v. Wheeler, 15 Q. B. 

 442 ; Jordan v. Norton, i M. & W. 

 160. 



(i) See ante, p. 7. 



(c) Marvin v. Wallace, 6 E. & B. 

 726; 2 Jur., N. S. 689. 



(d) Holmes v. Hoskins, 9 Ex. 763. 



(e) Castle V. Sworder, 30 L. J., 

 Ex. 310. 



