George Ellwanger et al., Respondents, v. George T. Fish, Appellant

George Ellwanger et al., Respondents, v. George T. Fish, Appellant. (Argued April 16, 1875; decided April 27, 1875.) This was an action to recover for a quantity of fruit trees, alleged to have been sold and delivered by plaintiffs to defendant. Plaintiffs’ evidence showed a verbal contract, and that a subsequent written order had been delivered by defendant; this was not offered in evidence ; also a shipment of the trees in accordance with defendant’s instructions. At the close of plaintiffs’ evidence defendant’s counsel moved for a nonsuit, upon the ground that there was no evidence of delivery. The motion was denied. Subsequently the written order was introduced in evidence, and proof was given of the receipt of the trees at their destination. Held, that if there was error in refusing to nonsuit, the defects were subsequently supplied, and thus the error cured. The court, after charging that unless there was a delivery pursuant to the verbal order, prior to the receipt of the written order, the latter superceded the former, and plaintiffs could not recover without showing that they had complied with it, charged that a delivery of the whole or part of the trees to a carrier, before the written order was received, would have taken the verbal contract out of the statute of frauds. The evidence was clear and undisputed that none of the trees were delivered to the carrier until after receipt of the written order. Held, that the error was harmless. Other questions were decided upon the facts, and upon the opinion of Rumsey, J., in the court below. J. M. Dunning for the appellant. D. C. Hyde for the respondents. [MAJORITY — Allen, J.,] Allen, J., reads for affirmance. All concur; except Folger and Miller, JJ., not voting. Judgment affirmed.