There is not much in this case but a question of fact. Plaintiff contended that he had sold the lumber to the defendant, through its officer and agent, Mac. English, and that it was an executed sale and not a mere executory contract to sell *64and deliver, and, further, that it had performed the contract on its part. There can be no doubt of the character of the agreement, if the'jury accepted the plaintiff’s version of the contract, instead of the defendant’s, which they seem to have done. The defense is that after inspecting and measuring the lumber and accepting it, through Mac. English and Hayes, the defendant, with the assistance of the plaintiff, loaded and shipped one car, and then discovered, as it alleges, that the balance of the lumber was not of the quality represented by the plaintiff. The jury passed upon this question, under the instructions of the court, and found against the defendant, so that there is nothing in the case left but the naked question as to the measure of damages.
The jury have found, under proper instructions and upon sufficient evidence, that plaintiff sold the lumber to the defendant, the identity of the lumber, the place of delivery, and the price being ascertained, and it appears that the only reason for the refusal was that a part of the lumber did not correspond in quality with what it was represented to be. If the jury had found this to be true, it may be that the defendant, under certain circumstances, would be entitled to a reduction of the price, or to reject the lumber. Caldwell v. Smith, 4 Dev. and Bat., 64. But there was some evidence to the effect that the defendant had the lumber inspected by English and Hayes and loaded and shipped a car-load of it. This was at least evidence of the fact that it had elected to accept the lumber, and the court having submitted the question of sale to the jury and they having found, upon all of the evidence, that there was a sale and that the quality of .the lumber was not misrepresented, we do not perceive that there was any legal impediment to the plaintiff’s recovery. The prayer for instruction was properly refused, as the plaintiff is suing for the price and not for unliquidated damages. If there was a sale, he is entitled to recover the price fixed by the contract, no fraud or any other vitiating fact having been shown.
The objection to what occurred between the plaintiff and Mac.- English is not tenable. There was some evidence to show that he was authorized to represent the company, and, besides, the correspondence tended to show that he was recognized as *65defendant’s agent, witb authority to make the contract for it, or, at least, that the company ratified what he did in its behalf.
■ We find nothing in the record to indicate that plaintiff w.as not ready, willing, and able to comply with its contract.
No error.