The opinion of the court'was delivered, by
Thompson, J.In all litigated cases the theory of each side, either in law or fact, is necessarily opposed to that of the other ; but each has a right to the testimony which will sustain his theory if, when established, it would maintain his part of the issue or destroy that of his opponent.
The theory of the defendant’s case here was that he purchased from the plaintiff certain coal machinery, built for the latter, and ready for delivery, for which oh completion of the bargain, he received an order calling for it deliverable on the day of its date ; that the order was presented to -the manufacturer for the machinery and refused, and that notice of this was given to the plaintiff. The plaintiff’s, theory was, that he did not sell specific machinery to the defendant, but only his chance of getting it from the manufacturers who had contracted to build it, and to ‘ whom he had paid a portion, if not all, the contract price, and that the order given, as testified to by his witness, was to carry out this arrangement. These were the theories of the parties. The defendant, among other things to support his, offered to prove by one Hague that he was present when the defendant presented the plaintiff’s order, and to which it was answered by the manu*518facturera’ man, or agent, in the shop, that there was no such machinery of plaintiff’s there, and that Hindle & Sons then wrote a letter to the plaintiff, which it was proposed to prove was delivered to Him, in connection with the testimony of the witness to the same effect, refusing the order. The witness and the letter, were both objected to, and overruled.
The defendant’s theory was not without evidence, that it was the trae nature of the transaction,' and if it was, it does not admit of a doubt that he was entitled to the evidence. He could not get the machinery without an acceptance of the order. To prove it protested lay at the very foundation of his case. To say that the evidence was inadmissible, was to assume the plaintiff’s theory to be true, and thus exclude the defendant’s. But as the entire contract rested in parol, the positions of the parties and their claims, were for the jury, and could not be'peremptorily ruled by the court. We think there was error therefore, and that the judgment must be reversed. It is certain there is more than one discrepant circumstance in the defendant’s way, if the plaintiff’s testimony be true, beside the date of the written notice from Hindle & Son to the plaintiff; but this may all be explainable, and the jury will dispose of the case when the evidence is all in. We see nothing in the other assignment; indeed it would be impossible to do so, as it is not stated that the question objected to was answered at all, or shown that the answer was injurious.
Judgment reversed, and venire de novo awarded.