Jackson, Chief Justice.
The Augusta Oil Company sued the Georgia Refining Company for breach of contract, and recovered a verdict. Whereupon a motion was made for a new trial, and its denial, on the grounds therein stated, is the error assigned.
1. There was no error, as alleged in the plaintiffs’ bill of exceptions, conceding that it is good as an interlocutory bill of exceptions, in declining to dismiss the motion for a new trial. The facts do not show laches in the defendant to such a degree as to demand its dismissal; but if they did, the plaintiffs themselves acted upon the judgment on the motion for the new trial and ratified it, by voluntarily writing off the interest, as required by the court, to permit the verdict for the principal sum to stand.
2. The principle of law on which the recovery is based, and under which the jury found for the plaintiffs when it was given in charge by the court, and which is excepted to here, is to the effect that where the buyer agrees to purchase personal property from the seller and pay a certain price for it, and then refuses to take it and pay for it, then the seller may keep it as his own and recover the differ-enco between the market price at the time and place of delivery and the contract price, as the measure of damages for the buyer’s breach of the contract. Such is the law. Benjamin on Sales, section 1165; 2 Watts & Sergt., 219; 63 Mo., 567; 12 N. Y., 50; 8 Watts, 239; Groover, Stubbs & Co. vs. Warfield & Wayne, 50 Ga., 644.
[508]*5083. The case is not within the statute of frauds. The contract is recognized in writing in many letters of the defendants, and was partly performed, either of which facts takes it without that statute. 29 Ga., 294; Code, §1951, sub sec. 2.
4. The jury found for the plaintiffs in respect to the quality of the oil, that it came up to the standard agreed upon by the parties, and there is evidence to sustain their finding and its approval by the judge below. Therefore the verdict and judgment must stand, if there be no error of law apparent in the record of sufficient materiality to require another trial.
5. There was no error in refusing to force plaintiffs to elect one or the other of the courts, or non-suit them.
6. There was none in putting the burden on the buyer to show that the oil did not come up to the standard in the contract of being prime oil, after its acceptance by the buyer.
7. Nor was there error in charging that, if the buyer, after testing the oil, made no immediate objection to it, but continued to exercise acts of ownership over it, such as insuring it or offering to mortgage it, such acts would, after examining and testing it, amount to an acceptance at the contract price.
8. Nor do we see error in telling the jury that, after goods have been delivered, and a portion sold by the buyer, he cannot rescind the contract, but would be liable for the value of the goods. It appears applicable to the facts where the buyer agreed to take all the oil manufactured during the season, and receive it at the.ssller’s warehouse in parcels, and does receive some parcels, and then refuses to receive the balance delivered according to the contract, when tendered in good quality and quantity according to the contract.
9. The requests to charge, so far as they are applicable to the facts and bear upon the law of this case, appear to [509]*509us to be embraced in the general charge, and the law of the entire case was submitted in that charge fairly and fully to the jury.
Judgment affirmed.
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