
    [Pittsburg,
    September 19, 1825.]
    REED against JOHNSTON.
    IN ERROR.
    "Where the court may reject evidence,-as irrelevant.
    This was a writ of error to the Court of Common Pleas of Indiana county, in an action brought by Hezehiah Reed, plaintiff in error, and plaintiff below, against Samuel Johnston, in which a verdict and jddgment were rendered for the defendant.
    The declaration contained several counts, but that on which the plaintiff relied, was for money had and received, &e. The error assigned was, in the rejection of evidence offered by the plaintiff, to show, that several sums of money had come to the hands of the defendant, in payments made to him by the plaintiff, and otherwise. Before this evidence was offered, certain facts had been proved by the plaintiff, to the following effect. The defendant had sold to the plaintiff a tract of land, for about the sum of nine hundred and fifty dollars, to be paid part in store goods. Possession was delivered to the plaintiff, but no conveyance executed. During the possession of the plaintiff, which continued four or five years, the debt was reduced to a balance of about four hundred and thirty dollars. The articles of agreement, for the sale of the land, were then cancelled by consent, and possession re-delivered to the defendant, but no evidence was given to show expressly whether or not it was agreed that the money which had been paid by the plaintiff was to be refunded. Under these circumstances, the court rejected the evidence by the plaintiff, to show the particular sums which he had paid to the defendant, or which the defendant had received by his order. The groiind of the rejection was, that the evidence was not relevant, because the payment had been made before the articles were cancelled, and the plaintiff had proved no express agreement, that the money should be refunded. The plaintiff excepted.
    The plaintiff offered evidence, also, that when he re-delivered the possession of the land to the defendant, it was in as good condition as when he received it from him. But the court rejected this, also, on the ground of irrelevancy, and sealed another bill of exceptions,.
    
      Tvhite, for the plaintiff in error,
    cited Gillet v. Maynard, 5 Johns. 85.,
    
      Stanard, contra.
   The opinion of the court was delivered by

Tirghman, C. J.

The ground of the rejection was, that the evidence was not relevant, because the payments had been made before the articles were cancelled, and the plaintiff 'had proved no express agreement, that the money should be refunded. In this, it appears to me, that the court was wrong. The evidence applied, directly to the count for money had and received, &c. and could not be said to be irrelevant, without assuming the fact in dispute, viz. that the .money was not to be refunded; for; if it was to be refunded, then the money received by the defendant would, in law, have been for the use of the plaintiff. Now, the question, whether the parties had agreed that the money should be refunded, should have been left to the jury; for it was simply a matter of fact, which should not have been taken from them. The plaintiff should have been permitted to prove the several sums which had come to the hands of the defendant; and, at the same time, the jury should have been- instructed by the court, that their verdict ought to be for the defendant, unless the plaintiff satisfied them, that, upon cancelling the articles of sale, it had been agreed, that the money which he had paid, should be refunded. The plaintiff offered evidence, also, that when he re-delivered the possession of the land to the defendant, it was in as good-condition as when he received it from him. And this too was rejected, on the ground of irrelevancy. I think it was relevant, because, if the plaintiff had re-delivered the land, in a worse condition than he received it, that circumstance might have had some tendency to lead the jury to the conclusion, (in the absence of express evidence,) that the money paid by the plaintiff was not to be refunded. I am of opinion, that all the rejected evidence ought to have been admitted, and, therefore, the judgment should be reversed, and a venir'e de novo awarded.

Judgment reversed, and a venire facias de novo awarded*  