George W. M. Silver et al., Respondents, v. Samuel W. Bowne et al., Appellants

George W. M. Silver et al., Respondents, v. Samuel W. Bowne et al., Appellants. (Submitted December 8, 1873; decided December 16, 1873.) This was an action to recover the alleged purchase-price of a cargo of hay and straw. Plaintiffs’ evidence tended to establish a verbal contract between the parties, the cargo to be delivered to defendants, upon the barge Erie, at Tivoli. This barge was owned by defendants and one Nichols, who was captain. The barge was employed in freighting for their joint benefit. Nichols was requested to go to Tivoli for a cargo of hay ; he had no knowledge that defendants had any interest in it, or that any contract had been entered into between the parties in reference thereto. The vessel was loaded with the hay and straw, which was delivered by plaintiffs under and in pursuance of the verbal contract, and was receipted for by Nichols. The cargo was lost by the subsequent sinking of the barge. At the close of the plaintiffs’ evidence, on the trial, defendants moved for a nonsuit, on the ground that no delivery'had been shown so as to make the contract valid under the statute of frauds. The motion was denied. The court charged the jury that unless Nichols was authorized to accept, plaintiffs could not recover. Held, that there was a sufficient delivery. Upon appeal, defendants’ counsel urged that even if there was a delivery, there was no acceptance. The court state that the point is not free from difficulty, but that it was not presented by any exception in the case ; that in the absence of an exception raising the question as to whether there was evidence warranting its submission to the jury, it could not be considered here. E. M. Wight for the appellants. Homer A. Nelson for the respondents. [MAJORITY — Andrews, J.,] Andrews, J., reads for affirmance. All concur. Judgment affirmed.