delivered the opinion of the court.
This case was tried by the court without a jury on appeal from a justice of the peace, and as no exceptions were taken to the admission or exclusion of evidence, and no instructions were asked, given or refused, the record does not present any question of law for the determination of this court.
At the close of the evidence, the defendant moved the court to dismiss the suit because there was no agreement in writing, signed by the defendant, to take the case out of the statute of frauds; but, conceding that the motion ought to be considered as an instruction, it was properly denied, because the evidence left open the question of fact whether the credit was given originally to Caffrey or the defendant; for, though the circumstance that the goods were charged to Caffrey on the plaintiff’s books was strong evidence to show that he was the primary debtor, it was not conclusive as a matter of law.
The judgment is affirmed,