Booth

Plaintiff obtained a judgment against defendant in the sum of $671, as damages for its refusal to accept and pay for a carload of cranberries, consisting of 215 barrels, alleged to have been sold and delivered by plaintiff’s assignor to defendant at an agreed price of $5.50 per barrel-f. o. b. at shipping point.

Defendant among other things pleaded and relied at the trial upon the statute of frauds as a defense to the action, and the vital question presented by this appeal arises out of this defense. The question is not only raised by the answer, but is presented by timely objections to certain of the evidence, a motion for a nonsuit, and attacks upon the sufficiency of the evidence to support the findings.

The facts are that plaintiff’s assignor, National Fruit Exchange, and defendant signed and executed a written memorandum as follows:

Defendant by its agent signed as “purchaser,” and plaintiff’s assignor, by its agent, signed as “shipper.”

Subsequently plaintiff’s assignor, through its agent, orally informed defendant that the opening price of the cranberries was $5.50 per barrel and defendant orally ordered the cranberries to be shipped. This testimony was admitted over…