McCumber & Bogart, for respondent:
The principal objection to the contract in this case is that it was not subscribed by the parties, but if a party assents to a contract, it becomes his contract without his signature and he may base an action on it. Case Machine Co. v. Smith, 18 Pac. Rep. 641; Dressel v. Jordan, 104 Mass. 412; Justice v. Long, 42 N. Y. 493. The contract in this case was something in the nature of a bill of lading, which, so far as it is a contract, cannot be varied by parole. King v. Lady Franklin, 75 U. S. 455; Barber v. Broa, 3 Conn. 9; Railroad Co. v. Putnam, 19 Ohio St. 221; Shaw v. Gardner, 12 Gray 438; Cox v. Peterson, 30 Ala. 608; The Delaware v. Oregon Iron Co., 81 U. 8. 579. So of an express receipt. Boorman v. Express Co. 21 Wis. 154. The claim has become stated, as about six months before the commencement of the action defendant received the bill and up to the commencement of the suit made no objection to it. He is therefore bound by it. Lockwood v. Thorn, 11 N. Y. 170; Terry v. Sickles, 13 Cal. 427; Edwards v. Hoeffinhoff, 38 Fed. Rep. 635; Truman v. Owen, 21 Pac. Rep. 665; Bernties v. Bicknell, 3 Pac. Rep. 206; Auzesias v. Nagle, 15. Pac. Rep. 371. Where there has been no objection to the account rendered, there being no evidence of fraud or mistake, it is binding on the parties. Paper Co. v. Moore, 10 N. E. Rep. 181.
The opinion of the court was delivered by
Corliss, C. J. The trial court having directed a verdict for plaintiff, the defendant appeals. The litigation grows out of the sale of lumber by the plaintiff to defendant. ‘The defense was that the contract price therefor was $450, and that all but forty-eight cents of this had been paid before suit was brought, and defendant tendered in his answer judgment for this amount, with costs up to that time. Plaintiff's contention upon the trial was that defendant was precluded from showing any oral agreement as to the price, because the parties had entered into a written contract on the subject. The plaintiff did business in Fergus Falls, Minn., and shipped this lumber from that point to De Villo, N. D., where defendant was to construct a barn with it. Plaintiff's position is that the alleged written
