#### Engeldinger, Respondent, vs. Stevens, Appellant.

*May 22*

June *20, 1907.*

*Sales: Completed delivery: Cancellation of order: Custom: Evidence.*

1. Delivery of merchandise in the manner and at the place specified in a written order constitutes an executed sale and warrants recovery of the price.

2. Notice of cancellation of the order, which did not reach the vendor or any one authorized to receive it on his behalf until after completed delivery as above stated, would not affect his right to recover.

3. Where there was no ambiguity in an order by a dealer for cord-wood nor in the vendor’s act in filling the order, evidence to. show a custom among fuel dealers of buying light at that season and the buyer’s interest in prompt shipment was immaterial.

Appeal from a judgment of tbe circuit court for Eau Claire county: James O’Neill, Circuit Judge.

*Affirmed.*

Tbe defendant, a dealer in wood at Eau Claire, having learned about April 7th that tbe plaintiff, residing at Durand, had maple wood for sale, and that his price was “$5.25 per cord, f. o. b. Durand, Wisconsin, cash with order,” and having at intervals of a few days ordered and received two carloads of such wood, the last shipped about April 22d and preceded by letter of April 21st from plaintiff, explaining that his shipments were dependent upon ability to get cars, and saying further, “Can supply you with four or five cars if you need it,” on April 22, 1904, wrote: “Your favor at hand. X see you have sent me another car of wood. Please load and send me another car.” To this letter plaintiff replied: “We will ship you another car as soon as possible, *i. e.*as soon as we can get a car.” Plaintiff immediately ordered a car, which arrived at Durand April 27th, whereupon he commenced loading the same and completed some time in the afternoon of April 28th, when he toot receipt therefor from the railroad company. TTpon the tender of such carload of *424wood to tbe defendant be refused to receive it, and plaintiff brings tbis action for its price.

Tbe defense was general denial, and proof was attempted that tbe order of April 23d bad been canceled, first, by tbe 'sending of a letter dated April 28th containing tbe words, “Ton will please cancel tbe order for another car of wood as I can’t stand tbe shortage,” followed by some statement of the short measurement of preceding cars. Tbis letter was not received by plaintiff until April 29th. Further, on April 28th defendant procured tbe railroad agent at Eau Olaire to telegraph tbe agent at Durand to notify plaintiff not to ship. Tbe agent at Durand telephoned tbis information to some person answering tbe telephone in plaintiff’s office, but plaintiff did not receive information until tbe 29th.

Tbe court rendered findings and conclusions to tbe effect that, a contract was consummated, and rendered judgment for tbe plaintiff for $76.12 and costs, from which tbe defendant appeals.

Eor tbe appellant there was a brief by *Wichham & Farr,*•and oral argument by *F. B. Farr.*

Eor tbe respondent tbe cause was submitted on a brief signed by *W. F. Plummer.*

Dodge, J.

Tbe delivery of merchandise in tbe manner and at tbe place specified in a written order constitutes an executed sale and warrants recovery of tbe price. *Murphy v. Sagola L. Co.*125 Wis. 363, 103 N. W. 113; *Fountain City D. Co. v. Peterson,*126 Wis. 512, 106 N. W. 17. Tbe findings declare such acts to have been performed by tbe plaintiff, and they are clearly supported by tbe evidence. Tbe right of tbe plaintiff to recover is therefore clear, unless cancellation of tbe order bad been communicated to him, or some one authorized to receive it on bis behalf, before such delivery. *Washburn v. Fletcher,*42 Wis. 152; *L. J. Mueller F. Co. v. Meiklejohn,*121 Wis. 605, 99 N. W. 332. Tbe trial court *425finds that the defendant’s attempted cancellation did not reach plaintiff until the day after the completed delivery f. o. b. Durand, and we are unable to discover that the evidence clearly, if at all, preponderates against such finding. Hence the right of recovery is established.

Error is assigned upon the rejection of certain evidence: First, what is characterized as evidence to show a custom among fuel dealers of buying light at the season of the year involved; also some other facts bearing perhaps upon the interest of the defendant in prompt shipment. Since there was no ambiguity in the order, nor in the act of the plaintiff in filling it, such evidence could have no materiality.

We find no other question in the record needing consideration and no error.affecting the correctness of the judgment.

*By the Gouri.*— Judgment affirmed.