The opinion of the Court was delivered by ,
Knox, J.In the Turnpike Company v. Brower, 2 Pa. Rep. *196462, Dorman v. The Turnpike Company, 3 Watts 128, and The Chestnut Hill Turnpike Company v. Martin, 2 Jones 361, it was held that the law would imply no promise to pay for the use of a turnpike-road, as, a statutory remedy was given through the. medium of toll-gates.
In Beeler v. The Turnpike Company, 2 Harris 164, actions were held to be maintainable upon express agreements to .pay for the -use of turnpike-roads. So that the rule may be considered as settled that, in the absence of an express contract, and where a means.of enforcing payment is given by the Act of incorporation, the statutory remedy is exclusive of all others.
In the case before us the jury have found that there was a valid contract between the parties, that the defendant should pay for the use of plaintiff’s boom. The instruction of the learned judge, as to what would constitute a contract, is unexceptionable. True, the contract must be express, but its existence may be shown by-cither positive or presumptive- evidence. It is said by the plaintiff in error, and this is the -burden of' his complaint, that there was no evidence of an express contract. The Court below thought there was sufficient evidence to submit to the jury, and we are not satisfied that any mistake was committed in this respect. To submit to the jury a fact, without any evidence of its existence, is error; but the burden of showing the error is entirely with the party alleging it. And before effect will be given to such an assignment, it must be most clearly established. The' Court before whom a cause is tried, generally speaking, have a much clearer view of the evidence given in the. cause than, a Court of revision; and the presumption is very strong that no question of fact is submitted to the jury, unless it is legitimately raised by the evidence. To rebut this presumption, we repeat, requires a clear case. 'Upon a careful examination of the'record, we agree wfith the judge of the District Court, that there was .evidence from which the jury might well find that the boom was used by the defendant, upon the understanding that it should paid for. It is unnecessary to repeat the evidence here, as it was concisely and accurately done by- the judge in his charge to the jury. No price was agreed-upon, but the contr'act was good without a stipulated price; and the evidence -which formed the first and second bills of exception was properly-received to prove how much the plaintiff was reasonably entitled to recover.
The entry of a judgment upon the verdict -was equivalent- to a negative answer upon all the reserved points. The whole case depended upon the existence of an express agreement that the defendant should pay for the use of the boom, and, when this was affirmed, he had not the least chance of making a successful.resistance to the plaintiff’s recovery.
Judgment affirmed.