The question presented is, whether upon the facts reported there was any evidence on which the referee could find a receipt and acceptance of the wood by the defendant sufficient to satisfy the requirements of the statute of frauds. Delivery and acceptance are questions of fact. Kelsea v. Haines,41 N.H. 246. "The test whether there is a binding contract within the terms of the statute is, whether there was a receipt and acceptance in pursuance of the previous agreement. When the seller has done all that is required of him by the oral agreement, it is for the buyer to determine whether he will accept. The question is not whether he ought to accept, but whether he did accept; and whether he has accepted is to be determined in every case by his acts." Knight v. Mann, 118 Mass. 143, 145; Benj. Sa., s. 139. Acceptance *Page 211 and actual receipt by the buyer of goods verbally bargained for must be shown, to take a case out of the statute of frauds, and no act of the seller alone is sufficient. Shepherd v. Pressey, 32 N.H. 49. "And there is no acceptance unless the purchaser has exercised his option to receive the goods or not, or done something that has deprived him of his option." Gilman v. Hill, 36 N.H. 311, 321. An acceptance of part of the property sold is sufficient. Pinkham v. Mattox, 53 N.H. 600, 606. The contract for the sale of the wood was an entire contract, and a delivery and acceptance of a part was sufficient to take the case out of the statute. Gault v. Brown, 48 N.H. 183.
The plaintiff delivered the wood at the defendant's mill, piling it at the places designated by the defendant. The defendant was at the mill and saw the wood drawn from day to day until the first of January, 1887, when he closed the mill and went to his home in Massachusetts. Some time in February he returned to Lancaster, and went to the mill and examined the wood that had then been drawn by the plaintiff, and made no objection to it. At that time about one half of the whole amount delivered had been drawn. The evidence of these facts was competent and sufficient to authorize a finding that the defendant accepted the wood then examined. The act of the defendant, in making an examination of the wood and making no objection to the character or quality of it, was evidence of his assent that the wood was accepted by him as so far satisfying the contract. His purpose in making the examination must have been to ascertain whether the wood delivered conformed to the contract; and his conduct signified an intention to accept it under the contract, and the plaintiff so understood it. It was an exercise of the defendant's option of rejecting the wood if for any reason it was unsatisfactory. It was an act independent of the original contract, showing a determination to accept and receive the wood already delivered. The fact that no survey had been made did not prevent an acceptance. No survey was required to determine what was sold. Weighing or measuring is not absolutely essential to a completed sale, except when necessary to define the subject-matter. Gilman v. Hill, 36 N.H. 311, 320.
Exceptions overruled.
BINGHAM, J., did not sit: the others concurred.