Action to recover damages for failure to deliver a quantity of hay plaintiff claims defendant contracted to deliver. The trial court directed a verdict for defendant, and plaintiff appeals.
It is alleged in the complaint that during the month of November, 1919, plaintiff and defendant entered into a- contract whereby defendant agreed to furnish to plaintiff such quantities of baled hay as plaintiff might require to supply its customers until such time.as defendant might notify plaintiff that he could supply no more. By the terms of the contract the hay was to be delivered on board the cars at Forbes, N. D., and at Summit and *420Beebe, S. D., at the following prices: At Forbes and Beebe, $17.50, and at Summit, $18, per ton. Relying upon this contract, plaintiff contracted to sell and deliver hay at various points in North Dakota and Montana in carload lots, and upon the sale of each carload placed an order for such hay with defendant. Defendant failed to deliver the hay when ordered, and plaintiff was compelled to purchase hay on the market to fill its orders, 'but at an advanced price, and this action is brought to recover the difference between the price at which defendant agreed to furnish the hay and the price plaintiff was obliged to pay on the market.
[1] Defendant’s answer is a general denial, but his motion for a directed verdict was based upon the ground that there was no mutuality of agreement between plaintiff and defendant, and that the contract was within the statute of frauds and void because no part of it was in writing. As the contract originally stood, both these grounds were good; for the contract was wholly oral, and no part of the hay was delivered, nor any part .of its •purchase' price paid at the time the contract is claimed to have been made. Neither was there axiy mutuality of agreement, for, while the defendant might have loaded the hay on the cars at the three stations mentioned in the contract, and tendered it to plaintiff in any quantity, still plaintiff was under no obligation to accept or become liable for any of it.
[2] But, to obviate these objections, plaintiff showed that after the making of the contract, and prior to the 26th day of November, 1919, plaintiff actually did order from defendant and direct the loading and shipment of 89 cars of hay at the prices specified in the contract; that on the said 26th day of November plaintiff and defendant had a conversation, in which defendant positively agreed to load and ship the said 80 cars of hay that had already been ordered by plaintiff. Under this agreement, if it was made, plaintiff bound itself to accept and become liable for the said 89 cars of hay. This supplied the element of mutuality that theretofore had been lacking.
[3] To take the case out of the statute of frauds, plaintiff showed that after the agreement made on the 26th day of November, 1919, defendant did ship at plaintiff’s direction 9 cars of hay. All of this hay, however, except 2 cars, was billed to plaintiff at prices materially higher than the prices that had been fixed *421by the alleged contract. All of these cars were accepted and paid for by plaintiff at the prices at which they were shipped. If these two cars were shipped pursuant to the said contract, it was such a part performance as took the case out of the statute of frauds.
The case should have gone to the jury upon- three issues of fact: First, as to whether any contract at all had been entered into by plaintiff and defendant; second, as to whether the supplemental agreement, as claimed' by plaintiff, which supplied the element of mutuality, was entered into bn the 26th day of November; and, third, whether the 2 cars that were shipped were shipped pursuant to and as a part performance of the contract claimed by plaintiff.
The judgment and order appealed from are reversed.