Opinion
January Term, 1900.
Judgment affirmed, with costs.
The action was brought to recover for goods sold and delivered. One of the plaintiffs testified to a conversation between the plaintiffs and the defendants in which the defendants, after looking over certain samples, said that they wanted to buy a line of samples; that if the shoes would keep up to the samples they could use the goods; that the shoes were to be shipped as fast as the plaintiffs could get them out; and that plaintiffs received the order and manufactured the goods and shipped them to Wallace, Elliott Co. The order was for certain samples preparatory to making a line of goods. This took place some time in November, 1897, and the agreed price was $206. This evidence was received without objection. The goods were received by defendants between December twenty-first and twenty-third and were retained for six weeks. The defendants' firm dissolved December twenty-third, but was continued by one of the defendants as successor. At the end of all the testimony the defendants moved to dismiss the complaint upon the ground that the plaintiffs had shown no cause of action whatever, as there was no proof to support a contract for goods sold and delivered, and moved to have all the testimony in regard to this contract stricken out upon the ground that it was incompetent and immaterial. That motion was denied, and the defendants excepted. Evidence having been received without objection, tending to show a valid contract for the delivery of goods to the defendants for an agreed price, followed by the delivery and retention of the goods for up wards of six weeks, the court was justified in refusing to dismiss the complaint, and a motion subsequently made to strike out that testimony which had been received without objection was insufficient to raise any objection to its relevancy under the allegations of the complaint. We think, however, that there was a good cause of action proved for goods sold and delivered. It was a sale by sample, and while executory and to be performed in the future, it was a contract for the sale of the goods. Whether or not the goods were to be manufactured or purchased by the plaintiffs was immaterial. The contract was not for work, labor and services, but for the sale and delivery of specific articles according to a sample produced, to be delivered in the future and at an agreed price. The court submitted to the jury the question as to whether there was an actual acceptance of the goods by the defendants, and there being no right reserved to return the goods, and the jury having decided that there was an acceptance, we think the plaintiffs were entitled to recover. There was no objection to evidence or to the charge of the court which needs consideration. The judgment should be affirmed, with costs. Van Brunt, P.J., Barrett, Rumsey and O'Brien, JJ., concurred.