
    John Goddard versus John Demerritt & al.
    
    Where lumber is delivered on board of a vessel, in accordance with a verbal bargain for it, and the vendee afterwards takes possession of it, claiming it as his own, he cannot set up the statute of frauds to defeat an action brought by the vendor to recover the price agreed upon for it.
    On Report.
    Assumpsit to recover the price of a lot of lumber alleged to have been sold and delivered by the plaintiff to the defendants.
    The evidence reported, tended to show that the defendants agreed verbally with the plaintiff for a lot of lumber, to be shipped from St. John, N. B., to Boston, at fixed prices; that, accordingly, a lot of lumber was shipped by the plaintiff’s agent, together with 16,600 clapboards, which he wished the defendants to purchase or dispose of on account of the plaintiff, at a given price; that he sent the survey bill to the defendants, and, after its receipt by them, the plaintiff called on them, and, at their request, made out a- bill of the lumber; that the vessel, on which the lumber was shipped, was wrecked and a portion of the cargo lost, but, that she was carried into Provincetown harbor with a part of the cargo; that, at at that place, the defendants took possession of the remaining lumber, including the clapboards, claiming it all as their property, and disposed of it by sale or converted it to their own use.
    The deposition of Walter E. Dodge was offered as evidence, and was to be considered, if legally admissible.
    
      Shelley Dana, for plaintiff.
    
      Rand, for defendants.
   The opinion of the Court was announced by

Goodenow, J.

The defendants cannot succeed in their defence by force of the statute of frauds. The evidence, without the deposition of Dodge, is sufficient to prove that the lumber sued for, with the exception of the 16,600 clapboards, was put on board the Batavia, for and on account of the defendants.

For this the plaintiff is entitled to recover according to the p/rices agreed upon; and, for the clapboards saved, so much in addition, as they were worth after the wreck, in the hands of the defendants, deducting salvage and all expenses.

Defendants defaulted; — .damages to be assessed by the Judge at Nisi Prius.

Tenney, O. J., Rice, Appleton, Davis and Kent, JJ., concurred.  