By the Court,

It is clear that the court, that tried the cause, erred in not granting the plaintiffs a new trial. The evidence shows that the plaintiffs agreed to deliver a certain quantity of lumber to John Saylors at the special instance of and request of the defendant, and that he stipulated on his part to pay for it, and that the plank was delivered agreeably to the terms of the contract. And the court (in this action which is assumpsit) gave judgment for the defendant. The contract is proved as declared on; and the record shows that the whole facts were submitted to the court, as well as the law; and that the judgment should have been for the plaintiffs. Judgment reversed.