
    PIKE v. WHITE’S ADMINISTRATOR.
    Motion, for non suit — refusal of,, no error — slight evidence — evidence.
    Motion for nonsuit is addressed'to the discretion- of the court, and should not prevail if there be any evidence tending to prove the issue.- if refused, even improperly, no writ of error lies, the party goes to t'he jury,
    If the plaintifE’s-claim-be for work done,- if there is no proof, the work was done, but only of a promise to pay if done, the court should instruct the jury for the defendant, and’ if they refuse, it is error.
    
      Error to the Common Pleas. White’s administrators sued Pike in the court below on the following contract:
    *“Mr. James S. White, [759
    “ Sir — I will be accountable to you for $100, for or towards the repair of the coach of Messrs. Fowler & Root.
    “ Jarvis Pike.”
    At the trial upon the general issue, the plaintiff read the letter in •evidence, and rested. The defendant moved for anon suit, because no evidence was given of a legal liability to pay. The motionwas overruled. The parties submitted to the jury without other evidence. The defendant asked the court to instruct the jury, that unless they had evidence that the coach was repaired,, the plaintiff could not recover. The court refused the instruction,, which was ■excepted to, and a verdict and judgment taken for the plaintiff.
    
      O. Parish and Swayne, for the plaintiff in error, insisted,
    the court erred, both in refusing the non suit and the instruction to-the >ry.
    
      G. Swan, contra,
    cited 29 O. L. 218; 2 John. Ca. 52; 3 Mason 44.
    
   WOOD, J.

The common Pleas were right in overruling the non suit. The evidence tended to prove the issue. But no writ of error lies to such refusal, if we should have ordered differently— the motion is addressed to the discretion of the court, and if refused, the applicant goes to the jury, not to the court of errors. But in refusing to instruct the jury, that without they were satisfied by proof the work was done, they should not find for the plaintiff, to make the defendant pay for it, the court erred; and for that error we reverse the judgment.  