p. 397FISH’S EDDY CHEMICAL CO. v. STEVENS.(Supreme Court, General Term, Fourth Department.Headnote
1. Justice of Peace—Adjournment Pending Attachment for Witnesses.Where attachments were issued, in a justice’s court to compel the attendance of Witnesses after the court had decided to adjourn until next day, the fact that it did adjourn before the return of the writs was not error.
2. Statute of Frauds—Sale of Goods.
A verbal contract for the sale of wood is not invalid under the statute of frauds; the wood having been measured by the parties and partially delivered, and the seller given credit for that amount on an open account due from the seller on the buyer’s books.
Appeal from Delaware county court.
Action by Fish’s Eddy Chemical Company against Julia Stevens. From a judgment of the. county court affirming a judgment of the justice’s court in favor of plaintiff, defendant appeals.
Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.Henry J. Williams, for appellant.
I. L. Brayman, for respondent.
The first question presented on this appeal is whether the justice before whom the action was tried had authority to adjourn the trial until the return of the warrants of attachment that were issued to secure the attendance of the plaintiff’s witnesses whom it had subpoenaed, but who did not appear. The contention of the appellant is that, because such warrants were not actually issued until the court had decided to adjourn the trial until the next day, it had no authority to grant such adjournment. We think this contention is too narrow and technical to be upheld. The appeal book shows that upon proof an application was made for attachments for two witnesses; that it was granted, and the trial adjourned until the next day, to enable the plaintiff to secure the attendance of its witnesses. We think this was authorized by section 2967 of the Code of Civil Procedure. The fact that the defendant was physically unable to attend, or, if not unable, that she convinced the officer that she was, does not render the adjournment irregular. After a careful examination of the evidence contained in the appeal book, without referring to it in detail, we are of the opinion that it was sufficient to justify the jury in finding that the defendant’s husband was her agent, acting for her, and with her consent, in making
p. 398and carrying into effect the contract for the sale of the wood in question, and in preventing the plaintiff from removing it. The appellant’s contention that the contract was void under the statute of frauds is not, we think, well taken. The evidence discloses that a contract between the parties was made for the wood in question. After it was ready for delivery, it was measured by the parties, and, as far as possible, was delivered to the plaintiff at that time. The portion thus delivered was paid for by giving the defendant actual credit for the amount upon a debt then owing by the defendant to the plaintiff, and by entering such credit upon its books. Under these circumstances, we think the contract as to the wood thus delivered and paid for was valid. We have examined all the other questions to which our attention has been called by the defendant’s brief, but find no error that would justify a reversal of the judgment. Judgment affirmed, with costs.