The opinion of the court was delivered by
Huston, J.—In this action the plaintiffs declared in assumpsit, for goods sold and delivered; for work done and materials provided ; for money lent; for money paid for the defendant; for money had and received; and on an account stated. It will be observed that this was a declaration at common law, and not a statement under our act of assembly.
The plaintiff, here, who was defendant below, filed an affidavit of defence, and pleaded non assumpsit, payment, and a set-off, and another special plea. There was no statement by the plaintiffs, nor counter-statement by the defendant, or if any such they were superadded to the narr. and plea. The plaintiff filed a specification of the items claimed by him. The first of these was a flag borrowed by him and not returned, $20; and three of the items were for the prices of three horses sold to the defendant, at dates specified, and for prices specified. The principal charge was for wood sold at different times. The plaintiffs did not before the jury rely on their books, but called witnesses to support the several charges, and did give evidence as to each of them. They then offered evidence as to another horse sold, not in the account filed. This the Court rejected.
The defendant’s counsel then called on the plaintiffs to produce their book of original entries, and it was produced, and read to the jury. *The defendants after reading this, closed, and requested the court to charge the jury, first, That if the plaintiff’s books did not sustain the claim, the plaintiff could not recover.
The second, related to the flag borrowed and not returned; this, the court told the jury could not be recovered in this action.
*80The third, in substance was, that the books did not prove it, being only one charge of 66-J cords, and the proof was of the delivery at sundry times in lesser quantities, and the proof did not amount to so many cords.
The fourth, that the two horses were sold to the defendant as the agent of another company, and that he was not personally liable. As the court was requested to charge that the books of original entries were not sufficient to support the plaintiffs’ claim, and supposing no other evidence had been given, the plaintiffs could not recover.
The judge charged the jury in .substance as follows(here the judge stated the remarks of the court below already given.)
The last part of it as to the liability of the defendants for the two horses, was more favourable to the defendant than the testimony — which was — “the two horses were bought in 1833. Adams was to send me the money when he took the horses. lie did not do so. I did not know but that Adams was to pay the money. I did not know they were bought by Adams for the People’s Line to Baltimore. I suspected they were to go to that company. Adams had told me he was acting for that company, and this was my reason for suspecting it. He afterwards told me so expressly. Adams had told me before he bought the horses, that he was acting for that company. But afterwards he told me the company were failing, but he would pay me for the horses: that that had nothing to do with it.” This was the testimony of the plaintiffs’ agent who sold the horses. And the express declaration by Adams to him, that he (Adams) would pay, would have put the case on strong grounds for the plaintiffs. This declaration of Adams was calculated to prevent the plaintiffs from using exertions to save themselves from a failing debtor, by the assurance that Adams individually would pay; besides there was no proof that the horses were ever given to the People’s Line, or used by them.
There is nothing in the charge of the Court of which the defendant had cause.to complain. How did the books of original entry of a shopkeeper, or mechanic, or labourer, or merchant, become evidence? Was it not from necessity? The human memory could not retain all the items of the account, and dates, and prices, and debtors — and entries at the time were necessarily ■ admitted, because the sale and delivery in most cases could not otherwise be proved. When the agent or clerk can, from his memory, state the sale, and date, and price, and purchaser, the book which is admitted to supply the defect of memory is not necessary. I do not speak of a case where the book of entries at the time, and memory differ, Hére *they agree except as to two cords of wood; and as to these the was favourable to the defendant.
*81As to the last error assigned, that the Court ought to have told the jury, the evidence was not sufficient to sustain the plaintiffs’ action. It is a mistake, as it appears to me, of the vital principle of trial by jury. The court decides matters of law; the jury matters of fact. In this case, witnesses proved every item of the claim. To be sure, except as to the two horses, there was no express promise to pay; but where the buyer is known, and is in good credit, what merchant, or mechanic, or auctioneer, asks the purchaser if he will pay ? Or who ever did more than order the article, or bid at the auction. The transaction includes the promise to pay, if the article is obtained. I will not say it is inferred. Though nothing is said, the transaction is itself a promise, as distinctly understood as if uttered; but if it was an inference, still it is for the jury and not for the judge.* This is proved by another principle of law: if you demur to parol evidence, you must distinctly admit all the facts testified to by the witnesses of the other party, and all that a jury may fairly infer from the facts proved.† Inferences from facts are for a jury.
Judgment affirmed.
Cited by Counsel, 1 Watts & Sergeant, 415 ; 2 Harris, 480.
See 6 Barr, 186; 9 Id. 174.
See post, 400.