On August 20, 1909, defendant in error, Lloyd Royce, sued the Conelly Construction Company, plaintiff in error, in the district court of Beckham county, in damages for the breach of a parol contract to deliver 2,000 cubic feet of sand at $1.25 per cubic yard, alleging part performance and acceptance by defendant for which, he says, defendant is justly indebted to him for the sand accepted, $41.25. After answer in effect a general denial, there was trial to a jury and judgment for plaintiff for $341.75, and defendant brings the case here.
There is no merit in the contention that this contract is within the statute of frauds (section 1089, Comp. Laws 1909), which reads:
"The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or by his agent: * * * An agreement for the sale of goods, chattels, or things in action, at a price not less than fifty dollars, unless the buyer accept or receive part *Page 426 of such goods and chattels, or the evidences or some of them, of such things in action, or pay at the same time some part of the purchase money. * * *"
This for the reason that the petition alleges and the proof shows sufficient part performance, by the subsequent delivery and acceptance of part of the sand, to take it out of the statute.
In Gabriel v. Kildare El. Co., 18 Okla. 318, 90 P. 10, 10 L. R. A. (N. S.) 638, 11 Ann. Cas. 517, the court, construing this statute, in the syllabus, said:
"A delivery and acceptance, at any subsequent time, of any part of the goods or chattels which are the subject of an oral agreement and within the statute of frauds takes the contract out of the statute of frauds and makes valid the entire contract."
Tinklepaugh-Kimmel Hdw. Co. v. Minneapolis, etc., Co.,20 Okla. 187, 95 P. 427; Logan v. Brown, 20 Okla. 334,95 P. 441, 20 L. R. A. (N. S.) 298; Grant et al. v. Milam,20 Okla. 672, 95 P. 424.
There is no merit in the remaining contentions.
Affirmed.
All the Justices concur.