DELIA SWEETLAND, Appellant, v. D. D. SHATTUCK, Respondent

[No. 7,064. Department One. October 21, 1884.] DELIA SWEETLAND, Appellant, v. D. D. SHATTUCK, Respondent. Evidence—Appeal—Practice.—Where oral evidence of an agreement required to be in writing is received at the trial without objection, the question of its admissibility will not be considered on appeal. Appeal from a judgment of the late District Court of the Nineteenth Judicial District of the State of California, and from an order of the Superior Court of the city and county of San Francisco refusing a new trial. The facts sufficiently appear in the opinion of the court. T. J. Crowley, and Alexander Campbell, Jr., for Appellant. Stanly, Stoney & Hayes, for Respondent. [MAJORITY — Ross, J.] Ross, J. Assuming that the agreement upon which the plaintiff relied for a recovery was required to be evidenced by writing, the plaintiff was permitted in the court below to give proof of the agreement without objection that it was not in writing. Such objection cannot be made here for the first time. (Reed on the Statute of Frauds, vol. 2d, §§ 540, 541, and authorities there cited.) The evidence upon which the verdict was based was substantially conflicting, and there were no exceptions taken in the court below to the instructions of the court. Judgment and order affirmed. McKinstry, J., and McKee, J., concurred.