Bunting

By the Court,

The action is brought to recover damages for breach of a special contract for the sale of goods. An answer was put in, and the cause tried before a jury. A verdict was taken for the plaintiffs, in accordance with which judgment was rendered.

It is now claimed that it does not appear that the contract upon which the suit is founded, was in writing, and that it was, therefore, void within the Statute of Frauds. The conclusion follows, if the premises be correct; and the sole question for our determination is whether the record shows that the contract set up was merely a verbal contract.

There are two ways prescribed by our Practice Act for bringing under review, on appeal, the proceedings at the trial. One is by preparing and settling a statement of facts by the parties, according to the 272d section; but there is nothing of that kind in the record. The other mode is pointed out by section 271, which says : “On the trial in the court below, any party may “require the clerk to take down the testimony in writing; “ when so taken down, it shall serve as a statement of facts, un- “ less the parties shall afterwards agree to one.” But the clerk was not, in pursuance of…