(after stating the facts.) The court did not err in overruling appellant’s motion to have appellee produce his books. It was not a matter that appellee had the right to insist upon at that stage of the proceedings. It was too late to call upon appellee to enter upon a more specific itemization of account at the time. The appellant had not moved to make more specific, and had not demurred to the complaint when the issues were being made up. Nor had he given appellee notice, before the trial was entered upon, to produce his books of account. He should have taken some or all of these steps if he expected to insist, as matter of right, upon the production of appellee’s books. The books were not essential to the maintenance of appellee’s cause of action; and, if appellant desired them for any purpose, it should have called for them before. It was at least within the sound discretion of the court, under the circumstances, to refuse appellant’s request made at that juncture of the trial. Appellant might very properly have had some of the items in the account made more specific, had it demanded it earlier, and might have had appellee produce his books, if it had advised him before that they were material or essential in its defense.
Second. The statute of frauds is urged as a defense here. But the allegations of the complaint show a suit upon an original undertaking on the part of appellant to pay appellee for goods and merchandise furnished appellant’s hands and employees, at the request of appellant, and upon contract made by and between appellant and appellee.
There is evidence sufficient here to sustain the verdict, both as to the contract and the amount recovered under it.
Affirmed.