The motion for a nonsuit cannot be considered, because the bill of exceptions does not purport to contain all the evidence given upon the trial on the part *556of the plaintiff. We think it highly probable from the course of the trial, that it does in fact contain all the evidence ; but when the record fails to show it affirmatively, we cannot presume that it does. The error mainly relied on by the appellants was the direction of the court as to the verdict. None of the plaintiff’s evidence is contradicted, nor are any of his witnesses attacked by impeachment or otherwise. From their evidence, it is plainly apparent that at the time the plaintiff signed the deed he did not remember or call to mind that he owned the extra forty acres included in it, but soon afterwards he called the fact to mind, and applied to have the error corrected; and the defendants, on a number of occasions, said to him that the forty-acre lot should be deeded back to him, or he should be paid for it. It is equally as apparent from the evidence that whatever and all the land the defendants purchased from the plaintiff, was to be paid for at fifty dob lars per acre. That was the price settled upon by the agreement. We think that when the defendants were made aware of the mistake in the deed, and they were requested to deed back the forty acres, and neglected to do it, the plaintiff had the right to elect to sue for the price agreed upon for all the land; and that as long as the defendants retain the land, they are in no condition to make any technical contention as to' the remedy the plaintiff has elected to pursue.
The general rule of practice undoubtedly is, that it is the province of the jury to weigh the effect of oral evidence, and to determine the credibility of the witnesses, and that the court cannot ordinarily interfere with that right. But this rule of practice cannot be permitted to interfere with another one equally as well settled, and that is, when there is no conflict in the evidence, no dispute as to the facts, there is nothing to submit to the jury, and the question is one of law to be decided by the court. In such cases, it is proper for the court to direct the verdict; *557and a verdict thus ordered will be sustained if the law and facts disclosed bv the evidence warrant it. (2 Thomp. Trials, § 2343; St. Johnsbury v. Thompson, 59 Vt. 300; 59 Am. Rep. 731.)
A fair test in such case is, if the jury, in the absence of a special direction, were to find a verdict the other way, ought it to be set aside? Testing this case by that rule, we do not hesitate to say that if the court had made no special direction in this case, and the verdict had been for the defendants, it would have been the duty of the trial court to have set the same aside, because it would have been wholly unsupported by the evidence. All the evidence is the other way. But this practice we are not disposed to encourage. The safer course is to let the facts go to the jury, under proper instructions, unless the case is such that it is the duty of the court to declare the legal effect of the evidence. In this case, however, the jury could have rendered no other verdict upon the facts before them.
For these reasons we affirm the judgment.