¶1By the Court,
¶2The plaintiff in error who was plaintiff below, brought an action against the defendants on an account for merchandise sold and delivered.
¶3The plaintiff was a witness in his own behalf, and testified that he had sold the goods, and the amount was correct; that the goods were delivered to Myers; that Farmer had told plaintiff in the presence of Myers : “If you will let Myers have goods, along, I will pay you for *479them, or settle for them, or something to that effect;” that he had sold the goods on the credit of Farmer, and with a knowledge that Myers was irresponsible. On cross examination he stated that the goods had been charged to Myers on the books; and in explanation testified that he had intended to charge the goods to Farmer, as he had sold them on his credit, but at the request of Myers, after Farmer had left the store, he had consented to charge them to Myers, so that Myers and Farmer could tell what each got, and they were so entered for this reason alone. Plaintiff offered other testimony tending to show the liability of Farmer, which was objected to because plaintiff in his testimony having admitted that he had charged the goods to Myers on .his books, he could not now maintain an action against Farmer under any circumstances. The instructions given were in accordance with this ruling, and presents the same question as that raised by excluding the testimony.
¶4Evidence: Admissiwiity of. The controversy as to Farmer rested wholly upon the point as to whether the credit had been originally given to him or to Myers. If it was given to Myers, the plaintiff could not recover of Farmer; not because the contract between Farmer and plaintiff was illegal and void, but because it was a contract to pay the debt of another, and not being in writing, no action could be brought on it; \Gm. Stat., 505, § 6.] If the credit was originally given to Farmer, then it was his own debt, and not of a kind that need to be evidenced by writing. The fact that the goods were charged on the books of plaintiff to Myers was good evidence, tending to show that the credit was given to Myers,- but it was by no means conclusive. It was a fact open to' explanation, and with all other facts, one for the jury to pass upon. It is for the jury to judge upon all the evi*480dence to whom the credit was given, and whether the agreement of Farmer is original or collateral; 41 IV. H., 390.
¶5Questions of law and Fact. The error of the court below arose from consi¿[ering that a matter of law, which in truth was a matter of fact. Whatever presumption arises from charging the goods to Myers is a presumption of fact and not of law, and is subject to be explained or rebutted by other facts. This the plaintiff attempted to do by the evidence he offered. The exclusion of this evidence, and the instruction based upon the same misconception of the law being erroneous, the case must be reversed and a new trial awarded.