¶1The appellants maintain that the contract set out in the counter-claim is within the statute of frauds, because the ties were not to be delivered within a year. The contract, to be within the statute, must be such that it cannot be performed within a year. Roberts v. Rockbottom Co., 7 Met., 47; Kent v. Kent, 18 Pick., 569; Wells v. Horton, 4 Bing., 40. The defendant, in his counter-claim, avers, and the evidence shows, that the ties were delivered and accepted within a year.
¶2The appellants also contend that although the ties were delivered at the place agreed on, and by them taken, loaded on the cars and sold, yet they are liable therefor only in an action ex delicto, because the ties were not inspected and counted by the parties while on the cars, according to the agreement; and that the court erred in instructing the jury that the taking and shipping of the ties by the appellants, without such counting and inspection, was such an acceptance as would render them *417liable therefor in this action. This position is so obviously untenable as to need no argument to prove it so.
¶3By the Court — Judgment affirmed.