The opinion of the Court was delivered by
Sharswood, C. J.It was an undisputed fact that, according to the conditions of sale, all goods bought were to be settled for in cash or by note before leaving the ground. They were not so settled, and the defendant, as he had a right to do, sold the goods which had been knocked down to the plaintiff to another person. The only ground, then, of recovery by the plaintiff must have been that this condition had been waived and the time extended. The onus frobandi of this was clearly upon the plaintiff. The Court, however, charged the jury that if from the conflict of the testimony of the plaintiff and defendant, with all the other testimony, they believed that they were exactly of the same weight, then the evidence of the one offsets the testimony of the other, and their testimony is effectually neutralized. This may be true in the abstract, but we think it was calculated to mislead the jury from the true point for their consideration, whether, upon the evidence, they believed the fact of the extension as alleged by the plaintiff, for, unless they did, the plaintiff failed in his case. A more material error,.however, was committed by the learned judge in his charge as complained of in the fourth assignment of error: “If you find, first, that Mr. Norton entered into an express agreement with Mr. Lehn that he should give his note, and in other respects comply within a certain time with the terms of the conditions of sale; or, second, if you can imply such an agreement by Mr. Norton’s acts with Mr. Lehn,” the plaintiff was entitled to recover. After a careful examination of the evidence, we have failed to discover any acts of Mr. Norton with Mr. Lehn from which such an agreement could be implied. Mr. Norton, immediately on the failure of Mr. *303Lehn to comply with the condition, sold the goods to another person, and refused the subsequent tender of compliance. The case should have been left upon the evidence as to the express agreement, and the jury not permitted to imply such an agreement without evidence.
Judgment reversed and a venire facias de novo awarded.