The Opinion of the Court was delivered by

This suit was commenced in September, 1842, by Ansley & Co. against Stahl & Brewster. The declaration was in assumpsit, for goods sold, and money had and received. Pleas, non assumpsit, and payment. Trial before a jury, and verdict for the plaintiffs for $45. The Court overruled a motion for a new trial, and judgment was rendered on the verdict. The defendant tendered a bill of exceptions embodying the whole of the testimony. They now assign for error, the refusal of the Court to grant them a new trial.

The evidence shows this state of facts. During the summer of 1842, Ansley & Co. left for sale certain cases of boots and shoes with Stahl & Brewster, who were commission merchants. They sold all of the cases but two, and paid over to Ansley & Co. the proceeds before the commencement of the suit. There was no evidence of a sale of the residue of the goods, nor of a failure to deliver them on request. On this state of case, the verdict was unwarranted. The jury was not authorized to infer from the evidence, a sale of the goods, and so charge the defendant for money had and received to the plaintiffs’ use; nor an appropriation of the goods by the defendants to their own use, and so charge them, as purchasers, with the value.

The judgment of the Circuit Court is reversed, with costs, and the cause is remanded for -further proceedings.

Judgment reversed.