(after stating the facts as above). Upon oral argument it was conceded that the question whether ten or only nine cars were actually shipped and received could not be withdrawn from the jury, and whether plaintiffs unreasonably delayed shipment of the one car in question — if that question is in . case — appears on the record obviously not resolvable as a matter of law, against the plaintiffs ; hence there remain two contentions:

First — Acceptance of the contracts by plantiffs.

Counsel for defendant makes no claim that areeptarce in writing to comply with the statute of frauds is essential, but urges that, as Keiser-Hogle Company was merely a broker without auihoriiy to accept for and bind plaintiffs to the contracts, some proof, verbs' or written, of acceptance by the latter, is essential. Assuming that it suffices to show acceptance without formal words, response to defendant’s demands is found in the record: (1) In plaintiffs’ receipt and reiertion of the broker’s notes. (2) In their acceptance of shipping orders. (3) In shipping eight cars and receiving payment therefor irem the defendant, all expx’essly upon the contracts. (4) In arranging ior and carrying out adjustment of claim for loss of one car for the benefit of the defendant. (5) In dealing with defendant directly, or indirectly through the broker (on defendant’s initiative), for delay or indulgence in making shipments.

This,, conduct, and the oral and documentary proofs evidencing it, establish conclusively, in our judgment, acceptance of the contracts. Clearly, upon these facts, plaintiffs could not contend nonacceptance, or that the obligations of the contracts had been accepted with a reservation, optionally to perform in part only by segregating shipments as separate contracts, and the defendant, after receiving partial performance, cannot be heard to urge no acceptance to relieve against its own default.

Secondly — Sufficiency of the declaration.

It set out in detail the facts, viz.: The execution of the contracts, their partial performance, the defendant’s repudiation and refusal to *876accept 171 barrels, and loss, measured by the decline in the market. It is urged that.-' because this count further avers that “by means whereof” (i. e., defendant’s failure, etc.) “the said defendant became and was and still is indebted to the plaintiff,” the declaration is not sufficient to sustain a recovery as upon breach of an executory contract, for unliquidated damages. Whether this shall be interpreted as a “common” or a “special)’ count impresses us as wholly without substance. The facts, as noted, and their averment in' the declaration, sufficed to disclose, plainly, a/ cause of action for damages upon breach of an executory contract, oí sale; the proofs had been offered and received on the trial without objection to their pertinency to establish that sort of a cause of -action. Hence, even tenable criticism of the declaration, in that it charged “damage” to be “indebtedness,” could and should have been met, with or without request, before or after verdict, by amendment conforming pleading to proofs.

The judgment is reversed, and the cause is remanded for a new trial.