CHARLOTTE HARBOR AND NORTHERN RAILWAY COMPANY, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF FLORIDA, PLAINTIFFS IN ERROR,

v.

BLAIR BURWELL, JUNIOR, AND CHARLES E HILLYER, COPARTNERS DOING BUSINESS AS BURWELL & HILLYER, DEFENDANTS IN ERROR

Hocker, J.:

On the 18th day of July, 1907, the defendants in error, whom we shall term the plaintiffs, brought an action of general assumpsit against the plaintiff in error, treated herein as the defendant, in the Circuit Court of Duval County.- The declaration and bill of particulars are as follows:

“Blair Burwell, Jr., and Charles. E. Hillyer,. co-partners doing business as Burwell & Hillyer, by their attorneys, Kay, Doggett & Smith, sues Charlotte Harbor & Northern Railway company, a corporation organized and existing under the laws of the State of Florida, for that, on the 1st day of July, A. D. 1907, the defendant was indebted to the plaintiffs in the sum of two thousand dolars for money payable by the defendant to the plaintiffs for goods bargained and sold by the plaintiffs to the defendant.

2nd. And in the like sum. for work done and materials provided by the plaintiffs for the defendant at its request.

3rd. And in the like sum for money lent by the plaintiffs to-the defendant.

4th. And in the like sum for money paid by the plaintiffs for the defendant at its request.

5th. And in the like sum. for money received by the defendant for the use of the plaintiffs.

6th. And in the like sum for money found to be due from the defendant to the plaintiffs on accounts stated between them.'

7th. And in the like sum for interest on divers sums of money due to the plaintiffs by the defendant, forebome to the defendant at its request by 'the plaintiffs before this time.

Wherefore, the plaintiffs bring this their suit, and asks damages in the sum-of two-thousand dollars.

And plaintiffs attach hereto-a Bill, of Particulars of the ¿ccount sued on.

Kay, Doggett & Smith,

Attorneys for the Plaintiffs. “Jacksonville, Florida, June ioth, 1907.

The Charlotte Harbor and Northern Ry. G>.,

To Burwell and Hillyer, Dr,

To 207 caps 12 in. by 12 in. by 12 ft, 29,808 ft. B. M., replaced at Gasparilla. Sound where taken off by direction of Chief Engineer, act- • ual amount paid by us to J. R. Chambliss for this work, at $7.00 per M........................ $208 65

To 4 Gasparilla bridge seats, exact cost, to us over and above the $10.00 per M. B. M., allowed us in the estimate, ...............,..$133 00

To 272 drift bolts at 10 cts. each on the 4 Gasparilla bridge seats...... 27 20

$160 20

To 10 per cent profit on the cost of these Gasparilla bridge seats, .... 16 02— 176 22

To 16 caps, 12 in. by 12 in. by 12 ft., 2,304 ft. B. M., replaced¹ at Myakka River where taken off by direction of Chief Engineer, actual amount paid by us to J. R. Chambliss for this work, at $7.00 per M.,....... 16 13

To 2 Myakka River Bridge seats, exact cost to us over and above the $10.50 per M. B. M. allowed us on the estimate, '............. 69 00

To¹ to drift bolts at iocts each on those 2 Myakka River bridge seats x i-00

$ 80 00

To to per cent profit on cost of those Myakka River bridge seats...... 8 00— 88 00 To 4 1-2 tons of coal returned with floating driver which you charged to us at $4.75 per ton.......... 21 37

$5io 37

Jacksonville, Florida, July .rst, 1907.

Charlotte Harbor & Northern Ry.’

To Burwell & Hillyer, Dr. Statement of bills sent to Charlotte Harbor & Northern Ry. which were passed by Mr. L. ML Fouts, 2nd Vice President and Gen. Mgr. C. H. & N. Ry., and sent to Auditor for payment:

May 1 — 1 bbl of cement taken from first shipment . ............$ 2 75

1 bbl. of cement left at Coral Creek for Va. B. & I. Co. . on requpst of Mir. B'ruce, through Mr. Spencer..... 2 75— 8 25

May¹ — 240 drift bolts, 660 lbs. at 3 cents, ..................$19 80

Labor, boring and drifting, at Myakka Draw, 10 bents each side, . .{............ 2 00

Cash to C. Lowe on request of Mr. Spencer, ........... 1 00

14 hrs. towing raft from Cape Hays at 75c..,........... 10 50— 33 30 May 9 — 3143 lbs. cast washers at 3c... 94 29

827 lbs boat spikes at $3.40... 28 12

71 lbs cut washers at 4c. . . . 2 84

353 lbs. drift bolts at 3c....... 10 59

309 lbs machine bolts at 3c. . 9 27

311 lbs. lag" screws, 248

screws, at. 6.4c........... 15 87 — 160 98

$202 53

Jacksonville, Florida, July 1st, 1907.

The Charlotte Harbor & Northern Ry. Co. T0 Burwell & Hillyer, Dr. To 112 cubic yards crushed Granite at 2384 lbs. per cu. yard, which equals 133 1-2 tons at $2,7x6,............................$362 58

The defendant pleaded “never indebted as alleged,” and “never promised, as alleged,” and an additional plea admitting indebtedness of $181.19 for lEe following claims named in the declaration, viz:

“1907-May 9 — 3143 lbs. cast washers at 30.$ 94 29

827 lbs. boat spikes, at $3.40 28 12

71 lbs. cut washers, at 4c. . 2 84

353 lbs. drift bolts at 3c. . 10 59

309 lbs. machine bolts at 3c 9 27

311 lbs. lag" - screws, 248

screws, at 6.4c, ........ 15 87

May¹ — 1 bbl. cement taken from first shipment, .......... 2 75 May x — i bbl. cement taken from Miyakka by Mr. Spencer. 2 75

1 bbl. cement left at Coral Creek for the V. B. & I. Co. on request of Mr. Bruce through Mr. Spencer, ........i.......... 2 75

41-2 tons of coal returned at $4.75 per ton, ...... 21 37

$190 60

Less 200 drift bolts furnished by Connoly mail boat, 225 lbs, at 3 c, April 10, 1907, .............. 6 75

For unloading rock returned from. Myakka to Liverpool, ................... 2 66— 9 41

$181 19

and setting up a tender and offer to. pay that amount in settlement of said claims and demands, which amount was paid into the registry of the court.

On the trial the plaintiff recoveied a verdict for the full amount claimed in the bill of particulars, and a judgment was duly entered for that amount and interest, which judgment is here for review.

It appears that on April 4th, 1906, the plaintiffs entered into a contract, not under seal, with the defendant, then existing under another name containing, among others, the following clauses, under paragraph I:

“First: The contractors agree that they will construct, build, and in every respect complete the trestle bridging for a single track railroad, on the line of the Alifia, Manatee & Gulf Coast Railway Company, in Manatee and DeSoto Counties, State of Florida, from and including the Peace River Bridge near Fort Ogden and Myakka River bridge and the bridge across Gasparilla Sound to Gasparilla Island, and all intermediate openings of not less than fifty feet (50.)

“Second: The contractors hereby agree that they will, at their own expense, cost and charge, find and provide a full and ample supply of the best and most suitable tools and appliances required to sell the goods, or if he disposes absolutely of the whole or any part of-them or attempts to do so, or alters the nature of the property or the like. But we think such facts must be clearly shown.” And the author says that in this case ithe court disagreed' with the jury and set aside the verdict, as not justified by the evidence.

In the case of Dorsey v. Pike, 3 N. Y. Supp. 730, in discussing what constitutes an acceptance under the statute of frauds, where the property alleged to have been sold was in the possession of the defendant, the court says: “The mere fact that the property was in the possession of the defendant at the time of making the contract furnished no evidence of acceptance in its support (quoting authorities.) But there must be some act or conduct on the part of the buyer in respect to the property, which manifests an intention to accept it pursuant to, or in performance of the contract of sale and purchase which the parties have sought to make; and when the evidence is such as to warrant that conclusion, the question is usually one of fact for the jury.”

In the case of Silkman Lumber Co. v. Hunholz, 132 Wis. 610, 112 N. W. Rep. 1081, it is held:

“Where the subject of a verbal sale agreement of personal property is in the possession of the contemplated vendee as bailee, or to some extent, by reason of its being on his premises by his permission, the mere agreement consisting of an offer to sell on specified terms and acceptance thereof does not work a change of possession, so as to satisfy the statute. To satisfy the statute of frauds in a situation such as last mentioned there must be some affirmative act on the part of the purchaser manifesting an intention to acept the property under the sale agreement, in order to make transition of title from seller to purchaser.” We are of opinion that applying these principles there is not sufficient proof in this record of an acceptance of the rock by the defendant so as to take the case out of the statute of frauds above cited. (Section 2518 General Statutes of 1906.)

There are a large number of assignments of error based on the admission in evidence of divers letters from the plaintiffs to the officers of defendant company setting up claims for remuneration for the work, labor, materials, etc., stated in the bill of particulars, and also to the admission of testimony on the part of witnesses of the plaintiffs upon the same matters. The objections are that such evidence was incompetent and irrelevant, and in some instances that it tended to vary the terms of the written contract. Upon the theory that parties to a written contract may subsequently to its execution by parol and' the course of dealing between themselves waive the conditions and vigorous requirements of a written contract we cannot say that any of th.e testimony was entirely irrelevant or incompetent, as it all more or less tended to show the course of dealing between the parties. There are also a large number of assignments based on charges and instructions given by the court, and on instructions refused by the court on the theory that there could not be a waiver of the requirements of the written contract. We have not discovered any serious and reversible error under these assignments.

The only other assignment which we think it necessary to notice is based on the overruling of the motion in arrest of judgment. It seems to be insisted that the bill of particulars was made a part of the declaration, and stated no cause of action because in the bill of particulars certain amounts are stated as having been paid J. R. Chambliss a sub-contractor. The bill of particulars is not made a part of the declaration, an'd the declaration itself is in the usual form. Shipman’s Common Law Pleadir.gs, p. 21. The bill of particulars contains no reference to a sub-contractor. We discover no ground for a motion in arrest of judgment.

There are sixty-four assignments of error presented here, and in addition question presented arising out of the overruling by the court of motions in arrest of judgment and for a new trial. We can not within any reasonable compass treat in detail these assignments, and have simply endeavored to discuss those which seemed to present the salient features of the case.

Because we do not think the item for crushed granite has been proven, and because there is no proper proof of the reasonable value of the other items mentioned, the judgment below is reversed and a new trial granted.

Taylor and Parkhill, JJ., concur. Shackleford, C. J., and Cockrell and Wi-iitfield, J.J., concur in the opinion.