The opinion of the court was delivered, May 27th 1868, by
Sharswood, J.The plaintiff below, a lumber merchant, had. *98furnished materials for the erection of a house for the defendant, which had been built by Wertz under a special contract. It was submitted to the jury to say whether they were furnished at the defendant’s request or on his credit, or that of his building, and whether he afterwards expressly assumed to pay the bill. We have only to consider the errors which have been assigned.
The first is that the court excluded the testimony of a witness who was offered to show that he was present and saw a settlement made between Wertz and the defendant, that certain books produced were then present, and the account admitted by Wertz to be correct. Admissions by Wertz, the contractor, were certainly not evidence as against the plaintiff. It may be that the bare fact of a settlement might have been proved by any competent witness present, just as the fact of payment might be. Rut that was not the offer. It was to show that certain books of the defendants were admitted by Wertz to be correct, and then to submit them to the jury. But even Wertz’s receipt in writing would not be evidence except as against himself. This is too well settled a principle of the law of evidence to be now brought into controversy.
The 2d assignment of error is to the answer of the court to the defendant’s 3d point. This may be advantageously considered together with the 5th error assigned, the answer to the 9th point, because in both the jury were instructed that if the lumber was originally furnished on the credit of the defendant’s building, his subsequent promise to pay would be on sufficient consideration. The ruling we think is fully sustained by the decision of this court in Cunningham v. Garvin, 10 Barr 366. It was there held that a past consideration flowing from a benefit conferred would support an express promise: in other words that a benefit derived from the unsolicited services of another creates a moral obligation to compensate that other, and though not enough without a previous request to give rise to an implied, it is sufficient to sustain an express assumption. A considerable part of the value of the defendant’s house was derived from materials furnished by plaintiff on the credit of it, and with the expectation of being paid for them. Unless there was some other equitable consideration, which is not presented to vary the case in the points put to the judge, surely there can be no question that it would have been immoral and unjust for the defendant to enjoy the plaintiff’s property without paying him for it. It remains to inquire whether the defendant’s promise was within the Act of April 26th 1855, Pamph. L. 308, “a special promise to answer for the debt or default of another.” If the defendant’s contract was a direct and absolute engagement to pay on a consideration moving to himself: if at the time the promise was made the plaintiff’s claim was a lien on the house: it was the debt of the defendant’s own building, *99the payment of which could legally be enforced against it; though it may not have been personally his debt, his property was answerable for it, and his engagement to pay was in relief of his property. So the case was put to the jury in these answers.
As to the 3d assignment of error it is enough to say that the defendant’s 4th point was affirmed, with the necessary qualification that the promise need not be to pay the whole amount claimed. So also there was no error in the answer to the 5th point. In fact that was also affirmed, although not in terms: for it did not become the court to adopt the language of the party and instruct the jury as to the degree of strength of a presumption arising from the evidence. It is sufficient that the question was fairly submitted to the jury as one wholly of fact.
Judgment affirmed.