1 The recent cases of Kibble v. Gough, 38 L. T. n. s. 204, and Page v. Morgan, 15 Q. B. D. 228, following dicta in Morton v. Tibbett, cited in note (d), supra, have very much narrowed the meaning of the acceptance required by the statute. In the former case the plaintiff delivered barley in pursuance of an oral contract, to the defendant's foreman, who gave a receipt marked "not equal to sample." The next morning the defendant himself inspected the barley and wrote immediately to the plaintiff refusing to accept it. It was held that there was evidence sufficient to justify the jury in finding an acceptance. In Page v. Morgan, sacks of wheat were delivered under an oral contract at the purchaser's mill in the evening. On the next morning some of the sacks were hoisted into the mill, opened, examined, and immediately rejected. The jury having found for the plaintiff, it was held they were justified in so doing, there being evidence of an acceptance sufficient to warrant it, Bowen, L. J., saying (p. 233): "Having regard to the mischiefs at which the statute was aimed, it would appear a natural conclusion that the acceptance contemplated by the statute was such a dealing with the goods as amounts to a recognition of the contract," and Brett, M. R., (p. 231) "How could any reasonable men come to any other conclusion from his dealing with them than that he had made a contract of purchase with regard to them, and that the goods were delivered to and received by him under such contract, and examined to see if they were according to the contract." In Taylor v. Smith, 40 Weekly Rep. 486 (C. A. 1892), however, it was held that where spruce deals were sent by a carrier under an oral contract to deliver them on board the carrier's barge, an examination and rejection of them did not constitute an acceptance. Kibble v. Gough and Page v. Morgan were distinguished on the ground that the question before the court in those cases was not whether there was an acceptance, but whether there was any evidence of acceptance for the jury. But it is evident, that the court was not wholly satisfied with those decisions. In this country it is held that in order to constitute an acceptance, the purchaser must in some way take to the goods as owner. Remick v. Sandford, 120 Mass. 309; Rodgers v. Jones, 129 Mass. 420; Simpson v. Krumdick, 28 Minn. 353; Fontaine v. Bush, 40 Minn. 141; Stone v. Browning, 51 N. Y. 211, 68 N. T. 598. Compare Vanderbilt o. Little, 43 N. J. Eq. 669; Meyer v. Thompson, 16 Oreg. 194. He may however waive the right to examine the goods, Mason v. Whitbeck Co. 35 Wis, 164.

* receives the goods, with a knowledge of their deficiency in quality or quantity, and without objection, he waives all right of future objection on this ground. If he accepts the same goods in the same way, without a knowledge of a deficiency which gives him a right of objection, and subsequently acquires this knowledge, he cannot return the goods and defend against an action for the price, under the statute, because the whole requirement of the statute has been satisfied; but he may, at common law, whether the contract of sale were oral or written, on the ground that the seller did not send or deliver to him what he bought. If the buyer expressly declares that he reserves the right of examining and objecting, this, perhaps, should be regarded rather as a conditional acceptance, which becomes complete and actual only when the condition has been satisfied.

A question has been made whether a delivery by the vendor to a carrier, satisfies the statute. The general question of the effect of delivery to a carrier, has been considered in the chapter on the sale of personal property, (e) Here it is only necessary to remark, that the delivery to a common carrier has been held to be such passing of the property out of the possession and control of the seller, as satisfies the statute, although the carrier is, for some in a particular way; and the defendant gave the plaintiff a shipping note, or order, directed to the wharfinger, requesting him to receive and ship the goods, when the plaintiff should send them. The plaintiff sent the bags accordingly, marked as requested. They were delivered at the wharf, and received by the wharfinger, on Wednesday, the 9th of February, but the defendants did not hear of their being sent until the following day, when the invoice was received. The defendants then examined the bones and wrote to the plaintiff complaining of their quality, and declining to accept them. Upon this evidence, Martin, B., before whom the case was tried, nonsuited the plaintiff. And the Court of Exchequer held, that the nonsuit was right. Pollock, C. B., said : "The goods were received by the person appointed by the defendants, but they were not at any time accepted. The defendants never saw them when they were in a state to be accepted, because they had not been separated. A man does not accept flour by looking at the wheat that is to be ground. The article must be in a condition to be accepted. There was no evidence of any acceptance of these bones, for the defendants never saw them after the separation had taken place."

Alderson, B.: "If a man buys a quantity out of a larger bulk, he does not buy it until it is separated from the rest; and there must be an acceptance after the separation. He must have an opportunity of refusing what the vendor may have selected. Here there was a delivery, but no acceptance." Martin, B.: "The question is, whether the defendants accepted part of the goods sold, and actually received the same. The contract was for such bones in the heap as were ordinarily merchantable, and they were only bound to accept such merchantable bones. Directions were, no doubt, given to the wharfinger to receive the bones, and in one sense they were received; but this was not an acceptance within the statute. There is no acceptance unless the purchaser has exercised his option, or has done something that has deprived him of his option. Morton p. Tibbett is a correct decision, because the purchaser had there dealt 'with the goods as his own; but much that is said m that case may be open to doubt. The decisions, in my opinion, show that the acceptance must be after the purchaser has exercised his option, or has done something to preclude himself from doing so." (e) See ante, vol. i. p. * 533.