majority">ELLISON, J.

Defendant, being a manufacturer of syrup, agreed with plaintiff in the spring to purchase, the following fall, the cane which plaintiff should raise on six or eight acres of ground. The cane was ripe and ready for delivery in September, when plaintiff offered to cut and deliver. Defendant not being ready to take the cane, his mill being for the time overcrowded, put plaintiff off by telling him to wait until he was notified. Defendant did notify plaintiff October 8, that he was ready to receive it. Rut the night of the eighth the cane was frozen, so as to become worthless, by a sudden and severe change of the weather. Plaintiff nevertheless proceeded to cut it and haul one load to defendant, which the latter refused to accept. Nothing was paid by defendant and the contract was not in writing.

The judgment was for plaintiff. At the close of plaintiff’s case defendant offered a demurrer, which was refused.

Plaintiff seeks to take the case out of the statute of frauds as shown, by his instructions, by reason of the delivery of one load of the cane. The defendant’s instructions, given by the court, also place the case within the statute and declare the contract of no avail unless there was a receipt and acceptance as is provided by the statutes (R. S. 1889, sec. 5187).

The demurrer to the evidence should have been sustained, and not having been, the verdict was manifestly for the wrong party under the instruction which was given for defendant. While according to the testimony given by plaintiff in his own behalf there may have been a receipt by defendant of part of the cane, there was no acceptance. Under the terms of the statute aforesaid, there must be both a *624receipt and an acceptance. Browne on Statute of Erauds, sec. 316d. Defendant not onty did not accept the cane offered but affirmatively refused to do so. In the view which we have taken the authorities cited by plaintiff are not in point.

The judgment will be reversed.

All concur.

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