Daly, J. —
This is an action to recover the value of twenty-three boxes of candles, alleged to be wrongfully detained from the plaintiff by the defendants, in which the plaintiff was non-suited upon tbe following state of facts:
The clerk of the plaintiff called upon one Russell to solicit an order for soap and candles. Russell agreed to take twenty-five boxes of soap and fifty boxes of candles, upon condition that the plaintiff would take in exchange all the damaged candles which Russell then had in his store. The clerk consulted tbe plaintiff, and he accepted the proposition; and, a day or two after, tbe clerk called upon Russell, and informed him that the plaintiff agreed to the terms proposed; whereupon Russell ordered, at the market price, twenty-five boxes of soap and fifty boxes of candles; and the clerk, on the part of the plaintiff, agreed to [368]*368take, in part pay, all tbe stock of damaged candles that Russell bad, at tbe rate of 13g cents per pound. After tbe contract was made, Russell and tbe plaintiff’s clerk went and examined an open box of candles placed near tbe door of tbe office, after wbicb Russell took tbe clerk to tbe back part of tbe store, where a lot of candles were piled up together, and, showing them to bim, said, “ Here is tbe lot of candles; send down some soap, and take tbe candles away.” Before this, Russell bad told tbe clerk that there were from fifteen to twenty-five boxes. Gandies are sold by tbe marks of tbe number of pounds on tbe outside of tbe boxes. Tbe terms of tbe sale to Russell were cash for tbe difference upon tbe exchange. He was to pay 14f cents per ^jound for tbe candles; tbe soap was to be at tbe market price.
The following day tbe clerk entered tbe order given by Russell on the plaintiff’s order book, and a day or two afterwards fifteen boxes of soap were sent to Russell. In a few days a load of candles was sent; but Russell in the meanwhile having made an assignment, bis assignee, Mr.Dimmick, refused to receive them, and they were brought back by tbe carman. The plaintiff’s clerk then called at Russell’s store, and after being informed by Dimmick of tbe fact of tbe assignment, the clerk demanded tbe damaged candles purchased of Russell, or that the soap which tbe plaintiff bad delivered to Russell should be returned. Dim-mick said be would take legal advice, and tbe clerk having called tbe next day, Dimmick told bim that he bad sold tbe soap and bad also sold tbe candles, to go into tbe country. The clerk afterwards saw Mr. Potter, one of tbe defendants, who told bim that he bad bought a lot of candles from Dimmick, at a bargain. Tbe clerk then stated to bim tbe circumstances, and Potter said it was hard for the plaintiff; that be had not paid Dimmick for tbe candles, and also that it made no difference to the defendants bow tbe suit terminated. The complaint alleged that twenty-three boxes of candles, slightly damaged, were delivered by Dimmick to tbe defendants, containing 1,177 pounds, amounting, at 13& cents per pound, to $158.89 ; wbicb was not denied by tbe answer. [369]*369The first question is, whether the contract for the sale or exchange of these twenty-three boxes of candles for the goods agreed to be, and in part delivered by the plaintiff, was void by the statute of frauds. It is alleged to be void because there was no delivery, in part performance, at the time the contract was entered into, the soap having been delivered a day or two after Russell and the clerk had agreed upon the terms of the sale or exchange; and we are referred to the case of Seymour v. Davis (2 Sandf. S. C. 239), but the decision in that case, that a delivery and acceptance in part performance of an agreement for the sale of goods must be made at the time of the sale, was founded upon an obvious misapprehension of the terms of the statute. The provision in the statute, respecting time, refers to the payment of part of the purchase money, and not to the receipt and accef& ance of part of the goods. "Where a payment of part of the purchase money is relied upon to take the case out of the statute, the payment must be made at the time when the contract is entered into; but it has been settled, in McKnight v. Dunlop (1 Seld. 537), by the Court of Appeals, if it was ever doubtful, that a delivery and acceptance of part of the goods takes the case out of the statute and renders the contract binding, though it takes place after the parties have agreed upon the conditions of the sale. “ The oral contract,” says Paige, J., in McKnight v. Dunlop, “may be considered good as a proposition, and the subsequent delivery of the whole or of a part of the goods, as an acceptance of the proposition and the final conclusion of a valid contract;” and it was accordingly held, in that case, that the delivery and acceptance of part of the goods, several months after the making of the verbal agreement, was a sufficient compliance with the statute; and even before that decision, it was held by the Supreme Court, in Sprague v. Blake (20 Wendell, 63), that a part delivery need not, by the terms of the statute, be made when the agreement is entered into. “ An oral agreement,” says the court, in Sprague v. Blake, “may stand for a mutually agreed proposition, and, unless revoked, the subsequent acceptance of part of the goods, which were the subject of the oral negotiation, [370]*370will make it binding.” In this case there was a delivery and acceptance of a part of tbe soap, a day or two after Russell and the plaintiff’s clerk had agreed upon the terms of exchange and sale, which rendered the contract binding.
But I think the court below erred in granting a nonsuit. Before a nonsuit can be directed, there must be no doubt in respect to what is proved by the evidence. The evidence must not only be taken to be true, but it must be so clear and conclusive, in respect to the facts upon which the conclusions of law are based, that it is in the power of the court to draw every inference which a jury might draw. Smyth v. Craig, 3 Watts & Serg. 18. If it is not of that character, the case must be submitted to the jury under proper instructions from the court in respect to the law. lÜ^is is especially so where no written agreement or contract is entered into, and a question arises as to the intent of the parties, to be gathered from their acts and declarations. Where the intent follows as the legal and logical conclusion from their acts, it may be passed upon by the court; but where, upon the evidence, it is so uncertain or doubtful as to justify a jury in finding either way, then it is not in the province of the court to pass upon the question, but the case must be submitted to the j ury.
Such, I think, was the case here. The agreement was in part for the exchange of commodities, or, rather, it was an agreement for the sale of goods, payment for which was to be made partly in goods ; the whole amount, or quantity of which, was not ascertained, but which was to be taken at a certain rate per pound, and partly in cash. If the parties had put their agreement in writing, and nothing more was expressed, but that the plaintiff was to deliver a certain quantity of soap and candles at a stipulated price, to be p,aid for partly in damaged candles and partly in cash, the construction of it, as an executory contract, would be, that the delivery of the damaged candles and the cash payment was to be contemporaneous with the delivery of the soap and candles the plaintiff bad agreed to sell. But it may have been the intention of the parties here, that the damaged candles were to be delivered at once.
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Daly, J. —
This is an action to recover the value of twenty-three boxes of candles, alleged to be wrongfully detained from the plaintiff by the defendants, in which the plaintiff was non-suited upon tbe following state of facts:
The clerk of the plaintiff called upon one Russell to solicit an order for soap and candles. Russell agreed to take twenty-five boxes of soap and fifty boxes of candles, upon condition that the plaintiff would take in exchange all the damaged candles which Russell then had in his store. The clerk consulted tbe plaintiff, and he accepted the proposition; and, a day or two after, tbe clerk called upon Russell, and informed him that the plaintiff agreed to the terms proposed; whereupon Russell ordered, at the market price, twenty-five boxes of soap and fifty boxes of candles; and the clerk, on the part of the plaintiff, agreed to [368]*368take, in part pay, all tbe stock of damaged candles that Russell bad, at tbe rate of 13g cents per pound. After tbe contract was made, Russell and tbe plaintiff’s clerk went and examined an open box of candles placed near tbe door of tbe office, after wbicb Russell took tbe clerk to tbe back part of tbe store, where a lot of candles were piled up together, and, showing them to bim, said, “ Here is tbe lot of candles; send down some soap, and take tbe candles away.” Before this, Russell bad told tbe clerk that there were from fifteen to twenty-five boxes. Gandies are sold by tbe marks of tbe number of pounds on tbe outside of tbe boxes. Tbe terms of tbe sale to Russell were cash for tbe difference upon tbe exchange. He was to pay 14f cents per ^jound for tbe candles; tbe soap was to be at tbe market price.
The following day tbe clerk entered tbe order given by Russell on the plaintiff’s order book, and a day or two afterwards fifteen boxes of soap were sent to Russell. In a few days a load of candles was sent; but Russell in the meanwhile having made an assignment, bis assignee, Mr.Dimmick, refused to receive them, and they were brought back by tbe carman. The plaintiff’s clerk then called at Russell’s store, and after being informed by Dimmick of tbe fact of tbe assignment, the clerk demanded tbe damaged candles purchased of Russell, or that the soap which tbe plaintiff bad delivered to Russell should be returned. Dim-mick said be would take legal advice, and tbe clerk having called tbe next day, Dimmick told bim that he bad sold tbe soap and bad also sold tbe candles, to go into tbe country. The clerk afterwards saw Mr. Potter, one of tbe defendants, who told bim that he bad bought a lot of candles from Dimmick, at a bargain. Tbe clerk then stated to bim tbe circumstances, and Potter said it was hard for the plaintiff; that be had not paid Dimmick for tbe candles, and also that it made no difference to the defendants bow tbe suit terminated. The complaint alleged that twenty-three boxes of candles, slightly damaged, were delivered by Dimmick to tbe defendants, containing 1,177 pounds, amounting, at 13& cents per pound, to $158.89 ; wbicb was not denied by tbe answer. [369]*369The first question is, whether the contract for the sale or exchange of these twenty-three boxes of candles for the goods agreed to be, and in part delivered by the plaintiff, was void by the statute of frauds. It is alleged to be void because there was no delivery, in part performance, at the time the contract was entered into, the soap having been delivered a day or two after Russell and the clerk had agreed upon the terms of the sale or exchange; and we are referred to the case of Seymour v. Davis (2 Sandf. S. C. 239), but the decision in that case, that a delivery and acceptance in part performance of an agreement for the sale of goods must be made at the time of the sale, was founded upon an obvious misapprehension of the terms of the statute. The provision in the statute, respecting time, refers to the payment of part of the purchase money, and not to the receipt and accef& ance of part of the goods. "Where a payment of part of the purchase money is relied upon to take the case out of the statute, the payment must be made at the time when the contract is entered into; but it has been settled, in McKnight v. Dunlop (1 Seld. 537), by the Court of Appeals, if it was ever doubtful, that a delivery and acceptance of part of the goods takes the case out of the statute and renders the contract binding, though it takes place after the parties have agreed upon the conditions of the sale. “ The oral contract,” says Paige, J., in McKnight v. Dunlop, “may be considered good as a proposition, and the subsequent delivery of the whole or of a part of the goods, as an acceptance of the proposition and the final conclusion of a valid contract;” and it was accordingly held, in that case, that the delivery and acceptance of part of the goods, several months after the making of the verbal agreement, was a sufficient compliance with the statute; and even before that decision, it was held by the Supreme Court, in Sprague v. Blake (20 Wendell, 63), that a part delivery need not, by the terms of the statute, be made when the agreement is entered into. “ An oral agreement,” says the court, in Sprague v. Blake, “may stand for a mutually agreed proposition, and, unless revoked, the subsequent acceptance of part of the goods, which were the subject of the oral negotiation, [370]*370will make it binding.” In this case there was a delivery and acceptance of a part of tbe soap, a day or two after Russell and the plaintiff’s clerk had agreed upon the terms of exchange and sale, which rendered the contract binding.
But I think the court below erred in granting a nonsuit. Before a nonsuit can be directed, there must be no doubt in respect to what is proved by the evidence. The evidence must not only be taken to be true, but it must be so clear and conclusive, in respect to the facts upon which the conclusions of law are based, that it is in the power of the court to draw every inference which a jury might draw. Smyth v. Craig, 3 Watts & Serg. 18. If it is not of that character, the case must be submitted to the jury under proper instructions from the court in respect to the law. lÜ^is is especially so where no written agreement or contract is entered into, and a question arises as to the intent of the parties, to be gathered from their acts and declarations. Where the intent follows as the legal and logical conclusion from their acts, it may be passed upon by the court; but where, upon the evidence, it is so uncertain or doubtful as to justify a jury in finding either way, then it is not in the province of the court to pass upon the question, but the case must be submitted to the j ury.
Such, I think, was the case here. The agreement was in part for the exchange of commodities, or, rather, it was an agreement for the sale of goods, payment for which was to be made partly in goods ; the whole amount, or quantity of which, was not ascertained, but which was to be taken at a certain rate per pound, and partly in cash. If the parties had put their agreement in writing, and nothing more was expressed, but that the plaintiff was to deliver a certain quantity of soap and candles at a stipulated price, to be p,aid for partly in damaged candles and partly in cash, the construction of it, as an executory contract, would be, that the delivery of the damaged candles and the cash payment was to be contemporaneous with the delivery of the soap and candles the plaintiff bad agreed to sell. But it may have been the intention of the parties here, that the damaged candles were to be delivered at once. They were pointed out, piled up [371]*371together in tbe back part of tbe store, to tbe plaintiff’s clerk, by Russell, wbo said, “ Here is tbe lot of candles, send down some soap, and take tbe candles away.” If tbis was not consenting tbat tbey might be taken away at once, and, as sucb, equivalent to a delivery at common law, it was certainly consenting tbat tbe plaintiff might take them away if be sent down some soap, and as be did thereafter deliver a part of tbe soap that bad been ordered, thereby rendering tbe agreement valid and binding, be acquired, in pursuance of Russell’s consent, the right to take tbe lot of damaged candles away.
It is urged, however, that'there could be no delivery of tbe damaged candles, as tbe entire quantity bad not been ascertained; tbat though separated and distinguished as a lot, tbe number of pounds contained in each box bad not been ascertained, tbat until tbat was done, and tbe whole number of pounds known, tbe delivery was not complete. It is, undoubtedly, the general rule in tbe sale of goods, tbat, while anything remains to be done respecting tbe goods between buyer and seller, tbe title remains in the vendor. That where any operation of weight, measurement, counting dr tbe like, remains to be performed in order to ascertain tbe price, tbe quantity, or tbe particular commodity to be delivered, and to put it into a deliverable state, tbe contract is incomplete until sucb operation is performed. Brown on Sales, 44 ; Macomber v. Parker, 13 Pick. 183. This rule is founded upon tbe presumption of law, tbat it .is not tbe intention of either buyer or seller tbat tbe title to tbe property should pass while something remains to be done; that they do not intend to treat- it as delivered, until tbe vendor has done all tbat it is essential be should do, and nothing remains but for the vendee to take possession. But this presumption must give way, and tbe rule founded upon it, where it appears from the acts and declarations of parties that tbey intended otherwise, Story on Contracts, 800, b, and cases there collected. Tbe authorities, moreover, are by no means agreed as to tbe precise extent or application to be given to tbis rule. Thus, it was held in Williams v. Allen (10 Humph. 339), that though tbe subject [372]*372matter of tbe contract be clearly ascertained, yet, if tbe price cannot be calculated until the parties have weighed tbe goods, no property therein passes to tbe buyer until such act be done, which is in effect tbe present case, for tbe number of boxes of damaged candles, or tbe number of pounds in each box had not been ascertained, and until that was known, and the value computed at the rate agreed upon per pound, the amount was not ascertained that Russell was to pay in cash. So in Dixon v. Myers (7 Grattan, 243), it was held that if tbe amount of tbe purchase money remains yet to be ascertained by tbe enumeration, measurement or weighing of tbe article, tbe general rule is, that the property does not pass to tbe buyer, but still remains at the risk of the seller. But Mr. Justice Strong lays down the rule very differently in Crofort v. Bennett, 2 Comst. 260. He says: “ If tbe goods sold are clearly identified, then, although it may be necessary to number, weigh or measure them, in order to ascertain tbe price of the whole, at a rate agreed upon between the parties, the title will pass. If a flock of sheep is sold at so much per head, and it is agreed that they shall be counted after the sale, in order to determine tbe entire price of tbe whole, the sale is valid and complete. But if a given number out of the whole are sold, no title is acquired by tbe purchaser until they are separated, and their identity thus ascertained and determined. Tbe distinction,” he says, “in all these cases, does not depend so much upon what is to be done, as upon tbe object which is to be effected by it. If that is specification, the property is not changed; if it is merely to ascertain tbe total value at designated rates, tbe change of title is effected.” Tbe 'point was not directly involved in the decision of Crofort v. Bennett, and tbe rule there laid down by Mr. Justice Strong can scarcely be regarded as in consonance with a subsequent decision of the Court of Appeals in Joyce v. Adams, 4 Seld. 291.
But whether the rule as stated by Justice Strong be correct or not, the title to the property will pass, though it be left in tbe possession of tbe vendor, and though something may remain to be done, as weighing or measuring, if such was the [373]*373understanding of tbe parties. McCandlish v. Newman, 22 Penn. 465. Barret v. Goddard, 3 Mason, 107 ; Macomber v. Parker, 13 Pick. 182 ; Chaplin v. Rogers, 1 East. 192. Story on Contracts, 800, b, for tbe general rule aboye referred to, is applied only as an interpretation of tbe intention of tbe parties, in tbe absence of evidence of any understanding between them indicating a different intention. Stone v. Peacock, 35 Maine, 385. If it appear, therefore, that they intended that tbe property should be regarded as delivered, and that the title to it should pass, tbe law gives effect to their intention, and tbe title passes; and if what they intended is doubtful or uncertain, under all tbe circumstances, even though there be no contradiction in the testimony, the question of intent must be submitted to the jury, and the3 ris^st determine it as a question of fact. Lester v. McDowell, 18 Penn. 95 ; Clemens v. Barr, 7 Barr, 263 ; Blenkinsop v. Clayton, 7 Taunt. 597 ; Phillips v. Bristol, 2 B. & C. 511 ; Baines v. Jevons, 7 Car. & Pay. 288 ; Story on Contracts, supra. The rule is thus stated in Hondlette v. Tallman, (14 Maine [2 Shepley], 400) : “ When the ’ law can pronounce, upon a state of facts, that there is or is not' a delivery and acceptance, it is a question of law to be decided by the court; but where there may be uncertainty or difficulty in determining the true intent of the parties respecting delivery aDd acceptance from the facts proved, the question is to be decided by the jury.” So it is said in Riddle v. Varnum (20 Pick. 280): “If something remains to be done, and there is no evidence tending to show that it was the intention of the parties to make an absolute and complete sale, the property does not pass to the vendee; but where the property is in a state ready for delivery, and the payment of money or the giving of security is not a condition precedent, it may well be the understanding of the parties that a sale is perfected, and that the interest passes to the vendee although the weight or measure of the article sold remains yet to be ascertained. Such a case presents a question of the intention of the parties. The party affirming the sale must satisfy the jury that it was intended to be an absolute transfer, and that all that remained to be done was merely for the pur[374]*374pose of ascertaining tbe price of the article sold, at the rate agreed upon.”
In this case, the subject matter of the contract (the damaged candles) was identified and pointed out as a distinct and separate lot; and though the number of pounds had not been ascertained, and though that was essential for the purpose of ascertaining what amount was to be paid by Russell in cash, still it may have been the intention of the parties that they should be regarded as delivered to the plaintiff when he should deliver some soap in part performance of his part of the contract; that he should then be at liberty to take them away, allowing Russell for the number of pounds, at the rate agreed upon. The quantity contained was agiere matter of computation, as candles are sold by the number of pounds marked upon the outside of the boxes. If the plaintiff had, in conformity with Russell’s request, taken them away without ascertaining the quantity, there could be no doubt but that the property would have been in him, as the price was agreed ujson, and the ascertaining of the quantity was merely a matter of calculation. Scott v. Wills, 6 W. & S. 366. It may well, therefore, have been the understanding of the parties, after the terms and conditions of the contract were finally settled, that he was at liberty to take them away whenever he thought proper. Unless the court could say that it was deducible, as a conclusion of fact, from the evidence, that the parties did not intend that the candles should be taken away, or that the title to them should not vest in the plaintiff, until the quantity was ascertained, it could not take the case from the jury. If it was not in evidence that Russell directed the plaintiff’s clerk to take them away, the court perhaps would be justified in coming to that conclusion; but, with that evidence in the case, the question of intent became at least too uncertain and doubtful to entitle the court to draw a positive conclusion respecting it. It was said, in Bradbury v. Marbury (12 Ala. 520), that “ Where testimony is too indefinite and inconclusive to warrant the court in saying that one thing or another is proved by it, the question must be left to the juryand that, in my judgment, is the case [375]*375here. If tbis case bad been submitted to tbe jury, and tbey bad found for tbe plaintiff upon tbis evidence, I do not see bow we could have disturbed tbeir verdict. „ If they drew tbe conclusion that Bussell intended, by wbat be said, that tbe plaintiff was at liberty to take tbe damaged candles away whenever be sent down some soap, giving Bussell credit, at tbe rate agreed upon, for tbe number of pounds be, tbe plaintiff, should find marked upon tbe boxes, could we say that there was no foundation in tbe evidence for such a conclusion ? A jury might infer, from tbe explicit terms in which Bussell directed tbe clerk to take tbe candles away, that be bad entire confidence in tbe accuracy, honesty and integrity of tbe plaintiff, and was therefore willing to trust him and take bis report of tbe quantity,'^d could we say that it would be erroneous in tbe jury to come to such a conclusion? But, without pursuing tbe illustration, it was at least doubtful, upon the evidence, wbat tbe parties intended. There was some evidence from which it might be inferred that Bussell regarded tbe lot of damaged candles as transferred to tbe plaintiff, when be was advised that the terms and conditions upon which be. bad agreed to purchase from tbe plaintiff bad been accepted; and tbe proper.course, therefore, was to let tbe jury pass upon tbe question.
If tbe title to tbe property was in tbe plaintiff, it could not be divested by tbe sale to the defendants. Williams v. Marsh, 11 Wend. 80 ; Covil v. Hill, 4 Denio, 323. Bussell’s assignee could transfer no title; and if tbe candles purchased by the defendants were tbe damaged candles embraced in Bussell’s contract with tbe plaintiff, which was a question of fact to be submitted' to a jury, the plaintiff could maintain tbe action.
INGRAHAM, Exest Judge. —
I cannot concur in tbe proposition that, upon proof of a contract, whether in writing or by parol, where tbe terms of such contract are not varied by tbe testimony, it becomes necessary to submit such contract to tbe jury for interpretation as to tbe intentions of tbe parties. If there is no dispute about tbe terms of a contract, it is tbe duty of [376]*376tbe court to pass upon its validity and effect. Whether, under such proof, the plaintiff has or has not made out a cause of action, is for the court to decide; and if the uncontradicted evidence of the terms of the contract is not sufficient to show the plaintiff’s right to recover, the case cannot be strengthened by submitting the evidence to a jury to ascertain the intentions of the parties making it. Where the evidence leaves the terms of the contract or any other fact in doubt, then the facts must be found by the jury; but I do not understand this rule to extend to a case where the construction of a contract is difficult, if there is no conflict in the evidence.
I do not, however, think this question to be material in this because, in my opinion, no title to the property ever passed to,,he plaintiff. The contract was for the sale, by plaintiff to Eussell, of a lot of soap and candles, to be paid for in part by candles in Eussell’s possession. Payment, I conclude, is never to be made until delivery of the article purchased, unless by express agreement. There was no such express agreement in this case; on the contrary, the contract was, to sell the soap and candles, and to take pay part in candles at a fixed price and part in cash. The plaintiff had no more right to the candles than to the cash in advance, and, until delivery of the whole property sold by the plaintiff, he had no right to demand payment, whether in cash or candles. The purchaser had a right to elect whether, on delivery of ¡aart, he would pay in part or not; and if he so elected to pay in part, he had an equal right to elect whether such payment should not be in cash. But a delivery by the plaintiff of a part of the goods sold did not vest in him the title to the goods he was to receive in part payment; and especially so, when it is apparent that the goods delivered by the plaintiff were far less in value than the goods to which he claims title in consequence of such delivery. It could not be urged, with any reason, that a delivery of one box of soap, under that contract, would vest in the plaintiff the title to all the twenty-five boxes of candles, and yet there is no more reason for such change of title in the one ease than in the other. It might be said that the remark made [377]*377by Russell, to send down some soap and take tbe candles away, was an agreement to deliver tbem in advance. That remark was after the contract was concluded, and formed no part of it. If it had been carried out by actual delivery, the title would have passed ; but it was no part of the contract, and. produced no change of title until such delivery was complete.
The subsequent offer to deliver to Dimmiclc was no tender to Russell, and no act was afterwards done to complete the sale, or to entitle the plaintiff to a delivery of the candles by Russell; and, before that offer was made, even if it had been sufficient, the title to the damaged candles had been transferred by Russell to his assignee and by the assignee to the defendants.
I do not see how, from the evidence in the cause, the jury cou^, find any amount as respects the quantity of candles which were so claimed by the plaintiff. The complaint fixes the quantity at twenty-three boxes, but every allegation therein is denied by the answer, and there is not a particle of evidence to show that the quantity in Russell’s possession was twenty-three boxes, or that they contained 1,177 lbs. It may be, however, that on the trial such value was conceded.
The dismissal of the complaint was proper, and the judgment should be affirmed.
Beady, J., concurred in the opinion of Judge Ingraham.
Judgment affirmed.