delivered the opinion of the Court:
Syllabus 1 The demurrer to the common counts was properly overruled. Should it have been sustained to the special counts or either of them ? Neither the first, second, third or fifth counts show any consideration whatever for the making of the promise in writing, set forth in said counts or either of them. The amount of the allegation is that the defendant being indebted to Cole, Hubbard & Co. and Cole, Hubbard & Co. being indebted to plaintiff, the defendant promised to pay such indebtedness. There is nothing in either of said counts set forth that shows any agreement between the Chesapeake and Ohio Railroad Company and the said firm of Cole, Hubbard & Co., whereby the defendant assuming to pay the debt of Cole, Hubbard & Co. to plaintiff, it should be discharged of said debt to Cole, Hubbard & Co. It is not shown in either of said counts that the railroad company could in any way be benefitted by the payment of said debt; or if it paid it, that Cole, Hubbard & Co. might not collect it from the said defendant.
In Parker v. Carter et al. 4 Munf. 273, it was held that “ a promise in writing not under seal, by a son to pay a debt for his father, must be considered nudum pactum, unless some consideration money from the creditor to the-son, or some agreement binding the creditor to for*707bear or the like, in the event of the assumption by the son be proved." In Colgin v. Henly, 6 Leigh 85 it was held that "the promise of one person to pay the debt of another, though in writing, must be founded on a consideration to make it binding." See Burr & Co. v. Spooner et al., 9 Leigh 153; Moseby v. Jones, 5 Munf. 23. The demurrer to said counts should have been sustained.
- SyiJabus 2 The fourth count does set out a sufficient consideration, to-wit: that the sub-contractors, Cole, Hubbard & Co., had ceased their work on sections 186 and 187 of said road, and that at the time they ceased said work, they were in debt to the plaintift~, who was a laborer under them, and that to induce the plaintiff to still work on said sections, the defendant promised him to pay all claims for work by him done on said sections for Cole, Hubbard & Co.; also for the work done by plaintiff after that time on said sections, and then, alleges that the said Cole, Hubbard & Co. were indebted to him $500.00 for said work, and that at the time said promise was macic, he did continue to work on said road, after said Cole, Hubbard & Co. had ceased work, but that defendant had broken its promise, and had refused to pay plaintift the said $500.00; but the count does not allege that Cole, Hubbard & Co. had not.paid said indebtedness to plaintiff before suit was brought.
I can interpret the language of this count in no other way, than the defendant promised, if plaintiff would continue to work on said sections after Cole, Hubbard & Co. ceased work thereon, that it would pay him for such work, and would also pay what Cole, Hubbard & Co. owed him for work thereon, if said Cole, Hubbard & Co. did not pay him; in other words, that defendant would guarantee the payment of said indebtedness of Cole, Hubbard & Co. There is nothing in the count to show that Cole, Hubbard & Co. were by any agreement of plaintiff, released from their indebtedness to him; therefore they were still liable to him, and the count in not alleging that said Cole, Hubbard & Co. had not paid
*708sa indebtedness to plaintiff, is fatally defective. Parker v. Carter, 4 Munf. 273; Burr v. Spooner, 9 Leigh 156 ; Colgin v. Henly, 6 Leigh 85.
The first bill of exceptions is to the judgment of the court in overruling the defendant’s objection .to the notice referred to in several counts of the declaration. Syllabus 3 rpi j.* _ # i* JLne notice was to persons having claims for labor or graduation and masonry on sections 186 and 187, western division, Chesapeake and Ohio railroad, and being so addressed, is as follows:
“ J. J. & T. J. Powers & Co., either by themselves, or through their agents, Cole, Hubbard & Co., having failed to pay laborers and mechanics on sections Nos. 186 and 187, the amounts due them, the Chesapeake and Ohio Railroad Company will pay the amounts due up to date, on the 16th inst., by their agent personally on the ground, at Hurricane bridge. Persons presenting claims must have them signed as correct by the parties having employed them; if the parties refuse, accounts must be sworn to beiore a justice of the peace in the manner required by law..
“W. A. Keeper,
“ Pr. Assistant Engineer.”
The paper is dated on the 30th of May, 1871. This paper was admissible under the third special count, if Syllabus 4 jj. pacj we¡¡ pleaded, because the evidence might have been followed up with other evidence, to make out the plaintiff's case. The court will not control the party in the order of introducing his testimony. It was also admissible under the common counts, as it might have been followed up with such a state of facts if they existed, under the common counts even, showing a liability on the company to pay the money. It might have been shown that Cole, Hubbard & Co. had settled with the railroad company, and left the money in the hands of the company to the use of the plaintiff. It does not appear that the defendant objected to it because it was *709offered at an improper time. It is the better course to show the relevancy of testimony before it is permitted to' go to the jury. It was improper to permit the notice be read to tbejury on objections made, until the agency of W. A. Kuper and his authority to sign the paper had béen proved. And it does' not appear that such agency and his authority as such agent, to execute the paper, had been proved at the time it was introduced. The evidence was all certified in the second bill of exceptions, from which it appeared from the testimony of the plaintiff himself that the labor done by him, to recover compensation for which he brought his suit, and for which he presented his claim to defendant, was all performed on section 36, of said road, and none of it on sections 186 and 187, referred to in said notice, the defendant when the evidence was all in, asked the court to give the following instructions to the jury:
“ 1. If the jury believe fromlhe evidence that the defendant paid out on June 16,1871, to the laborers and mechanics on sections 186 and 187, all that was due under its contracts with the contractors for work done on said sections, they must find for the defendant.
“ 2. Unless the jury believe from the evidence that the plaintiff worked as laborer or mechanic during the month of May, 1871, on sections 186 and 187 of the Chesapeake and Ohio railroad, they must find for the defendant.
“ 3. The jury cannot find under the evidence i i this ease on any of the common counts in the declaration.
“4. If the jury believe from the evidence, that the plaintiff, previous to ■ May 30, 1871, had accepted the check and due bill of Cole, Hubbard & Co., for services rendered them, they must find for the defendant.”
All of which instructions the court refused to give.
The first instruction was properly refused, because it it does not seem to have any connection with the plaintiff^ demand, and was calculated to mislead tne jury.
*710The second was properly refused, because it confined the the evidence to labor peformed in the month of May, 1871, when the company itself, in its notice, if it had been properly admitted, and a proper case had been made for plaintiff in the pleadings and proofs, did not confine itself to work done in that month, but provided for payment of amounts due for all work specified in s^id notice “ up to date,” to-wit: the 30th day of May, 1871.
Syllabus 6 The third, instruction was properly refused, as it clearly interferes with the province of the jury. The court will not be permitted, in an instruction to the jury, to tell them there is no evidence in the cause to sustain the plaintiff’s declaration or any count thereof. Instructions must be put in the hypothetical form, “ if the jury believe from the evidence,” &c., or, “unless the jury believe from the evidence,” &c., in any case involving the question, whether there is any evidence or a sufficiency of evidence to sustain the claim. To take advantage of a failure to sustain the declaration by evidence, the motion must be either to exclude the evidence from the jury, or there must be a demurrer to the evidence. James & Mitchell v. Adams, 8 W. Va. 568. It would be unsafe to allow the powers of a jury to be entirely taken away by the court telling them there was no evidence to sustain the plaintiff’s demand, and they must therefore find for the defendant. McDowell’s ex’or v. Crawford, 11 Gratt. 377; Hurst’s case, 11 W. Va. 568.
The fourth instruction was properly refused, because, even if under any circumstances, the giving by the debtor of his own note to his creditor for a pre-existing debt, could be regarded as a payment thereof, there . is not the slightest evidence in this case that the plaintiff received the check and due bill of Cole, Hubbard & Go., as payment of what they owed him.
The court instructed the jury for plaintiff, as follows:
Syllabus 5
“ That if they believe from the evidence that the defendants by their authorized agent, and acting within the scope of his authority as such, agreed in writing, signed *711by tbe agent as such, to pay to all persons having claims for labor on graduation and masonry on sections 186 and 187, western division of the Chesapeake and railroad, up to the 30th May, 1871, by their agent, personally, on the ground, at Hurricane bridge, on the 16th day of June, if the persons holding said claims, presented them there at that time and place, signed as correct by the parties having employed them, or sworn to before a justice of the peace, and that the plaintiff in this case did so present claims for work and labor on said sections 186 and 187, western division of the Chesapeake and Ohio railroad, up to 30th May, 1871, remaining unpaid, signed by the parties employing them as correct, or sworn to before a justice of the peace, then and there for payment, which was not paid by the agent, then the plaintiff is entitled to recover the amount of said claims from the defendant in this action, with interest from said 16th day of May, 1871.”
This instruction was objected to, and objection overruled.
The court should have refused the instruction ; and a sufficient reason is, that there is no evidence in the case, tending even to show that the plaintiff presented any claim to the defendant for labor done on sections 186 and 187, but the only evidence of work done by him on the road, was on section 36. The instruction was therefore irrelevant.
The third bill of exceptions is to the judgment of the court in overruling a motion for a new trial.
This motion should have been sustained and a new trial granted; because there was not sufficient evidence to sustain the plaintiff’s claim, or fix any liability upon the railroad company, as we have already seen. There is nothing in the reason urged for a new trial, that the jury were not properly sworn as contended for by defendant’s counsel, the record showing only that they “ were sworn as required bylaw.” We must presume in the absence of evidence to the contrary, that the jury *712were properly sworn. Douglas v. Central Land Company, supra.
For the foregoing reasons the judgment of the circuit court of Cabell county, rendered in this case, is reversed with costs to the plaintiff in error, and this Court proceeding to render such a judgment as the said court should have rendered, the verdict of the said jury is set aside, and a new trial awarded; the demurrer to each of the special counts in the declaration is sustained, and this cause is remanded to the circuit court of Cabell county, with instruction to allow the plaintiff to amend his declaration ii he shall so desire, and for a new trial to be had, the costs to abide the event of the suit, and the case to be further proceeded in, according to law.
The other judges concurred.Judgment reversed.