The Court did not overlook the testimony of the witness, Sam Gillian, to the effect that the lumber, whose value was sued for under the written memorandum, had been actually placed in defendant's lumber yard. But this testimony must necessarily be considered in the light of the defendant's contention that such placing of the lumber was not a "delivery" of it in the sense that defendant *Page 341 accepted it as a performance of the alleged sales agreement. On the contrary defendant contended in the case throughout that the lumber was not "delivered" in execution of a contract to purchase it outright, but was placed on the yard to be held subject to sale, the written memorandum concerning it being afterward executed as a mere memorandum of a part only of the transaction concerning it. Defendant was at liberty to show that no delivery in the sense of an execution or performance of the alleged sales contract had ever been made or accepted by the defendant under the written memorandum, but that the placing of the lumber on the yards was previously done pursuant to an entirely different kind of prior transaction and agreement, involving a wholly different kind of delivery for a different purpose than what plaintiff claimed. It was for the jury, not the trial judge, to decide this issue. See Ocala Cooperage Co. v. Florida Cooperage Co.
Rehearing denied.
DAVIS, C. J., and WHITFIELD, TERRELL, BROWN and BUFORD, J. J., concur.
