The opinion
Grant, J.
(dissenting). There is no dispute upon the
facts in this case. Both parties agree as to what took place at the date of the sale. There was but one transaction, and one order. The mere fact that the order was taken on different pieces of paper is of no more significance than as though the whole order was placed upon one piece, with a designation that the goods be shipped at different times. That defendant regarded it as one transaction is evident from his letter, in which he says, “Cancel my whole order.” There is no dispute, and the question became one of law for the court. I think, under the authorities, there was but one order, and that the acceptance and payment of the goods ordered shipped immediately, took the case out of the statute of frauds.
The second point in my Brother’s opinion is not raised in the briefs of counsel. We have not, therefore, the benefit of an argument upon it. I cannot concur, however, in my Brother’s conclusion. Defendant canceled his entire order by letter' of June 1st. Had he stood upon that, plaintiffs could not recover. But plaintiffs replied, explaining the situation, and notified defendant that they would ship the goods. Both letters treated the transaction as one, and referred to all the goods ordered. The first goods were shipped and accepted. It was not necessary to renew the order. The explanation appeared to be satisfactory to defendant, and his acceptance of the goods first shipped was a ratification of the original contract, and a notification to plaintiffs that their explanation was satisfactory.
The judgment should be reversed, and a new trial ordered.