122 P. 163 | Okla. | 1912
The defendant in error, as plaintiff, sued the plaintiff in error, as defendant, to recover the value of a certain car of coal, declaring in its petition in part as follows:
"That the defendant is justly indebted to it in the sum of $112, due on open account for 64,000 lbs. of Dawson lump coal, at $3.50 per ton, which coal was sold and delivered to the defendant at the special instance and request of the defendant and the same was received by defendant and used by him and converted to his own use." *602
The defendant interposed a demurrer to said petition, which was overruled. In this there was no error.
It is contended by the plaintiff in error that an agreement for the sale of goods at a price not less than $50, unless the buyer accept or receive part of such goods or chattels, is invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or by his agent; that, as it is not alleged that this contract was in writing, therefore the same does not constitute a cause of action. But the allegation is that the "coal was sold and delivered to the defendant at the special instance and request of the defendant, and the same was received by the defendant and used by him and converted to his own use." This pleading seems to bring the contract within the statute. Section 780, Wilson's Rev. Ann. St. 1903; section 1089, Comp. Laws 1909.
The evidence on the part of the defendant in error was that the car of coal was sold by its agent and delivered to the plaintiff in error for $112. That is sufficient to sustain the finding of the court, the trial being had without the intervention of a jury, in favor of the defendant in error.
No question has been properly presented to this court as to the admission of incompetent evidence. Under rule 25 (20 Okla. xii, 95 P. viii), "where a party complains on account of the admission or rejection of testimony," he must set out in his brief "the full substance of the testimony, to the admission or rejection of which he objects, stating specifically his objection thereto." No objection to the admission of evidence has been so presented in this case.
The judgment of the lower court is affirmed.
All the Justices concur. *603
