¶1delivered the opinion of the Court.
¶2There was no error in refusing to strike the plea of the statute of frauds from the files. If it was insufficient in substance and form, the only means of taking advantage of the defect was by demurrer. If it was sufficient as a plea, it was for the jury, and not the court, to determine whether it was sustained by the evidence. If the court, after the evidence was all heard, were to assume the right to strike out a plea because it was not sustained by the proof, the right of the jury to try issues of fact would be violated, and trial by jury thus terminated. This has never been indulged, and cannot be, as long as trial by jury obtains. The court has the right to inform the jury what facts must be proved to sustain the issue, but not to determine whether such facts have been established, and if the court thinks they have not, to take the issue from the jury by striking out the pleadings. ,
¶3The next question is, whether the finding of the jury is so manifestly against the evidence, that the verdict should be set aside, and a new trial awarded. Hulme and Henkle both testify, that plaintiff would not have parted with the goods, if defendant had not first agreed to indorse the notes at twelve and eighteen months. Before the goods were purchased, defendant was seen, and he agreed if the goods were furnished, he would indorse for Hulme and White, to enable them to furnish the hotel. Hulme testifies, that he wrote out a proposition, stating the terms upon which he and White were willing to purchase. The proposition was, that they were to give their notes, due in six, twelve and eighteen months, the two last to bear interest after six months, and defendant to indorse the twelve and eighteen months notes. That when these propositions were handed to defendant, he indorsed on it a note, by which he accepted the terms, and signed it. These propositions were sent to Henkle.
¶4The witness Henkle, testifies, that he received such a letter, and showed it to plaintiff, but says he never saw defendant write. He however, says, that he supposes he had frequently seen defendant’s name signed to bank notes. Now Hulme testifies, that defendant made the indorsement on the letter and signed it, and that he sent it by mail to Henkle, who testifies, that he received a letter, the same in all particulars. Can it be doubted that this was the same, or that there is proof that defendant signed the letter received by Henkle, and upon which plaintiff furnished the goods ? This identified the letter, stating the terms accepted or agreed to by defendant, as fully as proof could be made, unless the letter could have been produced. But having been destroyed by fire, it could not be produced on the trial, and proof of its contents and execution had to be made without its production. ■This we think has been satisfactorily done, and fully answers the statute even if it was a collateral undertaking.
¶5The evidence did not warrant the finding of the jury, and the court below erred in refusing to grant a new trial, and ’the judgment is reversed. ; ■
¶6Judgment reversed.