*508The opinion of the Court was drawn up by
Shepley J.The principal question presented by this bill of exceptions will be decided by ascertaining, what proof is necessary to maintain the action for goods sold and delivered. This appears to be determined, by the rules of evidence, to be proof of the contract of sale; of the delivery of the goods, or such a disposition of them, as will be equivalent to it; and of their value. 2 Stark. Ev. 874, Metc. Ed. The contract may be proved by testimony showing the terms of the agreement; the admission of the existence of the contract by the parties; or their acts affording satisfactory evidence, that one must have been made. Business is so transacted bel ween man and man, that it frequently happens, that no proof, of what took place between them, when the contract was made, or when the goods were delivered, can be produced. When goods are not sold on credit, the seller may detain them, until the price is paid by the purchaser. If there be proof of a sale and delivery, and no proof of payment, the presumption of the common law is, that they were sold on credit, or that the right to detain them for payment was waived. Hence it is, that entries made in the handwriting of a deceased clerk or other person, of the delivery of goods, are considered as sufficient proof of a sale and delivery, without any evidence of what actually took place at the time. Pothier’s treatise on the contract of sale is founded upon the civil law, which differs from the common law in some particulars, holding, that the right of property does not become vested in the purchaser by a sale and delivery without payment of the price, unless the goods were sold on credit. The language, which the witness states, that the parties in this case used at the time of the delivery, did not exhibit the terms of the contract of sale, but their admissions only, that such a contract had been made. From the use of that language payment would not necessarily be inferred, or the reverse of it. Hathaway v. Burr, 8 Shepl. 567. And the case was left subject to the general rules of evidence applicable to the action for goods sold and delivered.
It appears, that the jury returned into Court, before they *509had agreed upon a verdict; and that they were again instructed, what would be the conclusion of the law upon the facts submitted to them. It is contended, that this was erroneous. Such is believed to have been the settled practice in those judicial tribunals, in which the Judges have been accustomed to commit the cause to the jury by a statement of the law accompanied by a commentary in elucidation of the facts. The right to do so in this State is recognized by statute. That the words, “ if proposed to him,” contained in c. 115, $ 67, were not designed to limit the power of the Judge to the explanation of such questions of law only, as should be voluntarily proposed by the jury, will be obvious, when it is considered, that a discretion is therein confided to him to restate any particular testimony and to send them out, before they have agreed, more than once; and that to enable him to exercise it properly he must make suitable inquiries respecting their difficulties, and thus become informed of any respecting the law as well as the facts. Exceptions overruled.