knew its contents, there being evidence to show that the price was agreed upon before the delivery of the paper, and that defendant had no reason to believe that the paper embodied any contract or part of a contract. Therefore held error to refuse to submit to the jury the question whether the price agreed upon was different from that which appeared upon the face of the invoice. Held, further, that defendant was not, as a matter of law, bound by the price atated in the invoice, on reading the same after receipt by him of the lumber; nor was he concluded from showing that an account received and retained by him without objection, in which the price was set down according to the invoice, was erroneous because it incorrectly stated the contract price of the lumber. The action not being upon the account stated, but merely to recover the balance of the alleged purchase price of the lumber, held, that defendant could show this error without specially pleading it.
2 An order made after statutory time has expired, settling a statement or bill, operates to extend the time for such settlement to the date thereof.
3. On appeal from a judgment, this court will review errors of law occurring at the trial, whether a motion for a new trial was or was not made in the court below.
(Opinion filed Dec. 7, 1891.)
APPEAL from district court, Richland county; Hon. W. S. Lauder, Judge.
W. E. Purcell, for appellant. McCumber & Bogart, for respondent.
Action by Edwards & McCulloch Lumber Company against L. P. Baker to recover for lumber sold. Verdict and judgment for plaintiff. Defendant appeals. Reversed.
W. E. Purcell, for appellant:
A party who receives a paper upon its face purporting to be a contract, as certain railroad and steamship tickets, will be conclusively presumed to have read and assented to its terms. Quimby v. Railroad Co., 25 Mass. 365; Railroad Co. v. Stephens, 95 U.S. 665. Butsee Brown v. Railroad Co., 17 N. Y. 306; Fonesca v. Steamship Co., 27 N. E. Rep. 665. When a written contract is shown not to embrace all the agreements of a prior parole contract, parole evidence of it may be given. Baker v. Bradley, 42 N. Y. 316.
