Hubbard

In this action plaintiff sought to recover for the price of a lot of oil orchard heaters sold and delivered to defendant upon her order in writing made therefor. Judgment went for plaintiff, from which defendant appeals.

The giving of the order is admitted in the answer, pursuant to which it is therein alleged “that said plaintiff did send certain heaters to the premises of this defendant, but denies that the same were of the class, character, or kind represented to this defendant or by her purchased.” As to this allegation the court found “that it is not true as alleged in defendant’s answer that the said heaters were not of the class, character, or kind represented to or purchased by the defendant,” but, on the contrary, found that pursuant to the written contract plaintiff delivered the heaters so ordered to the defendant, who received, accepted, and used the same, for which she agreed to pay $916.65, no part of which was paid.

[1] Appellant attacks the finding of the court to the effect that the heaters delivered by plaintiff were of the class, character, and kind purchased by her. Her argument is based upon the claim that the order as given was based upon a sample of the…