William H. Barkhorn & Co. v. Zinno

Per Curiam. This action was tried without a jury in the District Court of Orange, and judgment in the amonnt of $288.83 was rendered for plaintiff. The suit was for a balance of the purchase price of lumber sold and delivered to defendant. It is objected by the defendant that the complaint does not state a cause of action, because the date of the sale and delivery of the lumber is not alleged. It is sufficient to remark that the date of sale appears in an itemized statement attached to and made part of the complaint. It is next contended that there was no proof of sale or delivery of the "extras” included in the amount recovered. The court, from the evidence, found otherwise, and the question was one of fact. It is claimed by the defendant that the evidence conclusively shows that the architect was not authorized to act for him. The court found that the lumber was ordered by the [1146] ■defendant. Tlie evidence is not actually before us, but there is sufficient from which a jury could find that the defendant personally ordered the goods, or that, if the architect ordered the purchase, that such act was ratified by the defendant. It is argued that the contract, if any, should have been in writing. There was a delivery and acceptance of the material, as well as a part payment, and those facts manifestly take the case out of the statute of frauds. The final contention is that the court should not have reopened the case after a motion for a nonsuit had been made. This was a matter resting in the trial court’s discretion, and presented no basis for legal error. The judgment will be affirmed.