By the Court,
PAINE, J.The only exception that appears in this case was to the refusal to grant a nonsuit. One ground of the motion was, that the contract proved was void by the statute of frauds. This could only be upon the ground that *101it was a contract for the sale of goods of a greater value thsvn fifty dollars. But the proof showed that these goods were delivered and actually sold to other parties by the agent of the defendants. Where part of the goods are accepted by the buyer, the case is expressly excepted by the statute itself.
There was no ground for the motion on the evidence. The proof showed the contract of sale, and a delivery of a large part of the shingles on the premises of the defendants in pursuance of it. There was nothing more to be done, in respect to those delivered, by the vendors, though the defendants had the right to have them inspected by their inspector, before they were obliged to accept them. But they might waive this right. And by selling them to other parties they did waive it, and accepted them beyond any possibility of refusal. Having done so, the plaintiffs could sustain an action for the price, although they were never inspected.
The proof certainly would warrant the jury in finding that Eranklin, in making the sale, was the agent of the defendants.
The judgment is affirmed with costs.