¶1The items of account annexed to the plaintiff’s writ were admitted at the trial, but the court ruled that the evidence offered by the defendant would constitute no defence to the action, and directed a verdict for the plaintiff. Was this ruling correct ?
¶2The defendant’s evidence had a tendency to show a special contract with Dailey & Hurd, to pay for the work done by them in specific articles. Whether the defendant at any time offered .to pay for that work, or whether they ever demanded payment, does not appear. Nor does it appear whether any such offer was made by the defendant to the plaintiff, or whether any demand was made upon the defendant for payment before this suit was brought. These are questions which might require some examination if the facts in the case, as it comes here, raised them. They may have come out upon the trial, but they do not appear upon the bill of exceptions, unless perhaps by implication, and we do not propose to consider them.
¶3When a verdict is directed by the court against a party, and there is evidence introduced by such party competent to be considered by the jury, and having a tendency to sustain the issue *32on bis part, the verdict must be set aside, even though the evidence be slight. The province of the court is to determine upon the competency of evidence, and not upon its sufficiency.
¶4Was then the defendant’s evidence competent to be submitted to the jury, as tending to show a special contract between the parties for the payment of the plaintiff’s account ? We think that it was. He had made a contract with Dailey & Hurd to do his blacksmith work and to take their pay therefor in produce from his farm. There was no evidence that the defendant knew that the firm was dissolved. Dailey continued to work in the same shop, at least so we take the fact to have been; and the defendant came and had his work done. In the absence of any knowledge of a dissolution of the firm, he might well suppose that he was having the work done upon the contract; and the plaintiff in giving him no information as to the dissolution, and no notice of a termination of the contract, might have been willing to have the contract continue, and to do the work as formerly.
¶5We do not express any opinion as to the weight of the evidence, but we think it was competent to have been submitted to the jury, and not having been, the verdict must be set aside and
¶6 A new trial granted.