Gard v. Ramos

Action for Goods Sold—Amendment of Answer so as to Plead Statute of Frauds.—In an action for goods sold and delivered it is not an abuse of discretion for the court to permit the defendant, at the close of the plaintiff’s ease, -to amend his answer so as to affirmatively plead the statute of frauds, where that issue has already been presented by the denials of the answer.

Id.—Waiver of Statute of Frauds by Failure to Object to Oral Evidence.—In such action the defendant does not waive the issue as to the statute of frauds by his failure to object to oral evidence offered in proof of the agreement to purchase the goods, since such evidence, while not of itself sufficient to establish the agreement, is one of the steps in the order of proof required by the statute of frauds, and is admissible, when followed by the other evidence required by the code, in order to take the agreement out of the statute.

Id.—Statute of Frauds—Oral Sale of Goods—Receipt and Acceptance.—It is essential, in order to take an oral agreement for the sale of personal property of the value of over two hundred dollars out of the statute of frauds, that the buyer should both receive and accept the goods. The requirement of section 1739 of the Civil Code in this respect is not affected by the amendments to section 1624 of the Civil Code or section 1973 of the Code of Civil Procedure.