
    Nathan Tufts et al. versus Peleg Seabury.
    Where the judge instructed the jury, that certain testimony proved a material fact, when in truth it was only evidence from which the jury might or might not have presumed such fact, and a verdict was returned in conformity to the instruction, a new trial was granted.
    Assumpsit for goods sold and delivered to the defendant on January 5th and 28th, March 23d and 30th, and April 6th, 1829. The writ was dated April 20th, 1829.
    At the trial before Wilde J., the price, quantity and delivery of the goods (which consisted of leather) were admitted by the defendant, but he set up as a defence to the action, that each parcel was sold and delivered upon an agreement for a credit of six month? from the time of the delivery. And to prove this defence he called one Chamberlain, who testified that he was at the defendant’s store on the 17th of December 1828, when Joseph Tufts, one of the plaintiffs, came into the store ; that Tufts asked the defendant if he wanted to buy leather, and the defendant then asked Tufts what were his terms ; to which Tufts replied, twenty cents a pound on six months’ credit; that the defendant then gave Tufts a reference to two persons, in order that he might inquire into the defendant’s credit; that the witness did not hear all the conversation between Tufts and the defendant, being engaged part of the time with his own affairs, but that when they were speaking of the terms upon which Tufts would sell the defendant leather, he was attending. On cross examination, the witness said he thought something was said about a discount of three per cent., and that the defendant said if Tufts would discount more, he would strike a bargain.
    To rebut this evidence, the plaintiffs called one Cram, who testified that he was present at the conversation above mentioned, and heard the whole of it, and that nothing was said about any term of credit. But the testimony of this witness was impeached.
    The plaintiffs also introduced evidence showing that the defendant’s goods were attached on the 29th of January 1829, in an action in the name of the plaintiffs, founded upon the sale and delivery of the first two parcels of leather, and tending to prove that that action was commenced and afterwards discontinued at the instance of the defendant, and without the knowledge of the plaintiffs.
    It was contended on the part of the plaintiffs, before the jury, that the testimony of Chamberlain did not prove an agreement between the parties, that the leather should be delivered upon a credit of six months ; that at most it only raised a presumption that it should be delivered upon a credit; that the writ of January 29, 1829, procured without the knowledge of the plaintiffs, either by the defendant himself or with his knowledge and consent, was sufficient to rebut this presumption, because it tended to prove, either that there was no agreement for a credit, or if any, that there was a waiver of this privilege by the defendant; and the burden of proof being upon the defendant to support his defence, the verdict ought to be for the plaintiffs.
    
      April 1st, 1831.
    
      June 11th, 1830.
    But the judge instructed the jury, that if they believed the testimony of Chamberlain, they ought to find for the defendant, unless from the testimony of Cram and other evidence and circumstances they should be of opinion that the offer of credit, as testified to by Chamberlain, was withdrawn, and other terms of sale substituted for those first offered.
    To the above direction the plaintiffs filed exceptions.
    
      Rand and Osgood, for the plaintiffs,
    contended that a new trial should be granted, because the jury were instructed that the testimony of Chamberlain proved an agreement for a credit, when in truth it did not amount to sufficient proof of that fact; and this instruction precluded the jury from considering and weighing the evidence in the case. They cited Aylwin v. Ulmer, 12 Mass. R. 22.
    
      Sumner and Meld for the defendant.
   Per Curiam.

At the trial, a good deal of evidence was introduced by each party, on the question whether the goods were sold on a credit. We'are apprehensive that the manner in which the instruction to the jury is represented in the bill of exceptions, is not accurate, as the judge who presided at the trial thinks the cause was correctly submitted to the jury. But taking the bill of exceptions as it stands, a new trial should be granted. The judge is represented to have told the jury, that if they believed Chamberlain, they ought to find for the defendant ; whereas the proper instruction would have been, that they should find for the defendant if, upon the whole evidence, they believed that a credit had been given. The verdict therefore will be set aside, though we are inclined to think that justice has been done.

New trial granted. 
      
       See Curl v. Lowell, 19 Pick. 25; Morton v. Fairbanks, post, 368.
     