The first point made by appellants is first made in this Court; we are, therefore, not called upon to pay any attention to it.
The rule that a verdict will not be disturbed as against evidence, when there is a conflict in the evidence, as there is here, was adopted in the first volume of our Reports, in Gunter v. Sanchez, 1 Cal. 49, and has been steadily adhered to ever since, inclusive of the last volume.
The contract did not come within the Statute of Frauds. It was simply to make fifty thousand bricks for plaintiffs, and there was nothing provided about a delivery. There was no contract for delivery, nor was the property susceptible of delivery. As soon as the bricks were burned they became unconditionally the property of plaintiffs. The defendant had no further interest in them. The obligations of the contract were concluded.
The instructions given to thejury were correct; by them the jury were allowed to pass upon the question of the contract.
JUDGES: Wallace, C. J.
OPINION
WALLACE, Judge
This is an appeal from an order denying the motion of the plaintiff for a new trial.
First--The point made that the verdict is for too small a sum of money cannot be considered here, inasmuch as it was not specified in the statement filed in support of the motion with the particularity required by the statute.
Second--The evidence in relation to the subject of the counterclaim was substantially conflicting, and the verdict will, therefore, not be disturbed here. Third--The counterclaim does not purport to be a contract for the sale or delivery of chattels; but one for the performance of labor. If it had been otherwise, however, the defendant was permitted, without objection, to prove it by other evidence than that required by the Statute of Frauds, and an objection on that point cannot be made now. It is true that at a subsequent stage of the trial a motion was made to strike out the evidence of the contract, because it was not in writing, which motion was denied by the Court; but the fact that the evidence was already before the jury, without objection, was a sufficient answer to the motion. The supposed incompetency of the evidence appeared on its face, and the objection should have been made when it was offered.
Fourth--The second instruction given at the instance of the defendant is somewhat open to criticism, in the respect that the question of the authority of George B. Chester to enter into the contract was not adverted to in that instruction; but in the first instruction given, upon request of the plaintiffs, the jury were distinctly told " that, in order to bind the plaintiffs by such contract, it must be shown that the plaintiffs assented thereto or authorized George Chester to make such a contract, in order to bind the plaintiffs thereby." In view of this distinct enunciation upon the point the jury could hardly have been misled by the omission occurring in the other instruction.
The order denying new trial is affirmed.