5 Kan. 477 | Kan. | 1870
By the Court,
The plaintiff in error who was plaintiff below, brought an action against the defendants on an account for merchandise sold and delivered.
The plaintiff was a witness in his own behalf, and testified that he had sold the goods, and the amount was correct; that the goods were delivered to Myers; that Farmer had told plaintiff in the presence of Myers : “If you will let Myers have goods, along, I will pay you for
Evidence: Admissiwiity of. The controversy as to Farmer rested wholly upon the point as to whether the credit had been originally given to him or to Myers. If it was given to Myers, the plaintiff could not recover of Farmer; not because the contract between Farmer and plaintiff was illegal and void, but because it was a contract to pay the debt of another, and not being in writing, no action could be brought on it; \Gm. Stat., 505, § 6.] If the credit was originally given to Farmer, then it was his own debt, and not of a kind that need to be evidenced by writing. The fact that the goods were charged on the books of plaintiff to Myers was good evidence, tending to show that the credit was given to Myers,- but it was by no means conclusive. It was a fact open to' explanation, and with all other facts, one for the jury to pass upon. It is for the jury to judge upon all the evi
Questions of law and Fact. The error of the court below arose from consi¿[ering that a matter of law, which in truth was a matter of fact. Whatever presumption arises from charging the goods to Myers is a presumption of fact and not of law, and is subject to be explained or rebutted by other facts. This the plaintiff attempted to do by the evidence he offered. The exclusion of this evidence, and the instruction based upon the same misconception of the law being erroneous, the case must be reversed and a new trial awarded.