delivered the opinion of the court.
The evidence introduced on behalf of appellant in the court below showed a delivery by appellant to the town of Bond of the building materials, to collect the value of which this suit was instituted, and the use thereof by the town of Bond in the erection of a schoolhouse. This evidence, if true and unexplained, would entitle appellant to recover. Methodist, etc., Church v. Vicksburg, 50 Miss. 601. We do not think these facts were sufficiently explained to bar appellant from a recov*726ery, certainly not to the extent of entitling appellee to a peremptory instruction.
The court was also in error in permitting appellee to prove by parol the terms o£ its written contract with Parcell, the contractor who built the sehoolhouse, without accounting, under well-settled rules, for the absence of the written instrument itself.
Reversed and remanded.