If the purchaser of goods under an agreement otherwise void by the statute of frauds, accepts a delivery of the goods, or some part of them, either when the agreement is made, or afterwards, such agreement thereby becomes a valid and binding contract. This proposition is too well settled to require the citation of authorities to sustain it.
The plaintiffs’ testimony tended to prove an acceptance of the three casks of wine, by the defendant, in the summer of 1871. This rendered it necessary that the case be submitted to the jury, to find whether there was such an acceptance. If the defendant accepted the wine, neither the statute of frauds, nor the alleged excess in filling the order therefor, is of any importance. Hence the motion for a nonsuit was properly denied .on both grounds.
The instruction to which exception was taken, considered in connection with the other portions of the charge, amounts only to this: that if the defendant accepted delivery of the wine at the cellar of Mr. Brigham, he thereby became liable to the plaintiffs for the agreed price thereof. We find no error in the instruction.
By the Court. — The judgment of the circuit court is affirmed.