p. 168Fish’s Eddy Chemical Company, Resp’t, v. Julia Stevens, App’lt.(Supreme Court, General Term, Fourth DepartmentFiled December 26, 1895.)Headnote
1. Justice of the' peace—Attachment for witnesses—Adjournment.Where warrants of attachment to secure the attendance of the plaintiff’s witnesses were not actually issued until the court had decided to adjourn the trial until the next day, the court has authority to grant such attach- , ments.
2. Statutes of frauds—Sale.
A verbal contract for the sale of wood is not invalid under the statute of frauds, where the wood has been measured by the parties and partially delivered, and the .vendor is given credit for the amount of the part delivered on an open account due from him on the purchaser’s books,
Appeal from a judgment of the county court, affirming a-judgment of the justice’s court in favor of plaintiff.
Henry J. Williams, for app’lt:
I. L. Brayman, for resp’t.
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 attendence 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
p. 169she 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 and carring 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 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.