Stewart

This appeal is without merit. Defendant seeks the reversal of a judgment against him for the sum of $293-, with interest thereon from the time of the commencement of the action, and costs of suit.

The complaint is for goods sold and delivered by plaintiff’s assignor, the Travis Glass Company, a corporation, having its place of business at Clarksburg, West Virginia, to the defendant. Said goods were of the value of $533.44 and comprise two shipments of milk bottles. The answer specifi cally denies the allegations of the complaint and sets up a separate defense of novation.

The trial court found that the first shipment of goods was sold and delivered to defendant by plaintiff’s assignor and that defendant agreed to pay .the sum of $293 therefor; the court also found that a novation was not established.

Defendant says that the appeal is taken upon- the grounds (1) that there is a total failure of any evidence showing a sale and delivery of the goods, and (2) that there was a novation.

The record shows that at the commencement of the trial it was. agreed by the parties, in open court, that the goods were sold to defendant at the price named in the complaint and delivered—“to…