Gard

This is an action brought to recover the sum of $461.30, the value of certain goods, wares, and merchandise claimed to have been sold and delivered by plaintiff’s assignor to the defendant and which he refused to accept and pay for. The answer denied the contract to purchase the goods and also their delivery, and admitted the defendant’s refusal to receive and pay for them.

Upon the trial the plaintiff offered evidence of an oral agreement to purchase the goods, which evidence was admitted without objection on the part of the defendant. The plaintiff also offered proof of the delivery of the goods to the South-_ em Pacific Railway Company, a common carrier, at San Francisco, for shipment to the defendant at Haywards, California, and that they were duly forwarded to him there, but that he refused to accept or receive or pay for them.

At the close of plaintiff’s case the defendant moved the court for leave to amend his answer so as to set up the plea of the statute of frauds. The court granted this motion. Thereupon the defendant moved for a nonsuit, which motion the court also granted, and entered judgment accordingly. From these orders and judgment, and also from an order…