The first action in this case was assumpsit, or rather complaint under our statutory forms, upon an open account. In that suit the plaintiffs undertook to show by certain letters and acts of defendant that he had promised, or that from what he had done the law implied a promise to pay the plaintiffs’ advances to Hunt & Bryan. The jury found against them, and this Court upheld the finding. They now bring a suit in tort, *595alleging that the defendant, by Ms deceit, has damaged them a certain amount, and they offer precisely the same evidence they used on the former trial to sustain their declaration. Is the judgment in the first suit a bar? We think it is. The only ground upon which it can be contended that the evidence sustains the charges in the declaration in the last suit is, that it proves that the defendant, by his acts or letters led the plaintiffs to believe-he would pay the advances to Hunt & Bryan, that is, that by his false statements and acts he misled the plaintiffs into that belief.
Now it does not and cannot make any difference whether a promise is in words or acts. If the defendant did, or said, or wrote any thing from which the plaintiffs had a legal right to infer that he had undertaken to pay them, that would be a promise, and if not an express promise it would make such a state of facts as that the law would imply a promise. In other words,1 if in this evidence there is anything from which it is proper to infer that the defendant had led plaintiffs to believe he would pay the advances to Hunt & Bryan, it would have been the duty of the jury to find for the plaintiffs in the first suit. But áfter hearing all this evidence the jury found for the defendant, and this Court affirmed the judgment. It follows, therefore, that the judgment in the first suit is a bar to this. The evidence introduced, if it shows that the defendant, by his acts, words or writings, led the plaintiffs, by Ms deceit, to believe he would pay their advances to Hunt & Bryan, would have entitled the plaintiffs to a verdict in the first suit, since it would have shown either an express promise or a state of facts from which the law would imply a promise. But on this question of the effect of the evidence a jury has passed. We think this is the rule laid down by the authorities. The right of the plaintiff to bring a second suit depends upon whether the jury in the first case passed upon what he now claims to be the effect of the evidence. If it did the verdict is a bar. We think, therefore, the Court was right, and affirm the judgment.
Judgment affirmed.