The opinion of the Court was drawn up by

— By the contract the intestate agreed to pay to the plaintiffs one half of what he might obtain by the sale of certain lots of land, over eight dollars an acre; and not to sell the land without paying them, as their proportion of the profits, one thousand dollars. The plaintiff's, to establish their claim, must prove, that he sold the land, or their right to have a conveyance of it by virtue of the bond, which was assigned. The testimony introduced does not furnish any such proof. All which the testimony shows that the intestate did or said respecting it, was to inform the owners of the land, that he and Smith had an assignment of the bond, that they had sent men on to examine the land, and had found, that there was not so much timber on it as had been supposed; and that they introduced Huntington, stating, that he would give a less price for the land than that named in the bond. The witness states, that the owners saw no more of them, and proceeded to bargain with Huntington, that he presumes he had not an assignment of the bond, that lie never saw it in his hands, and has no recollection, that it was surrendered to them, when they conveyed the land. The intestate could not be affected by the conclusion of the witness, that the contract with Huntington *256was a continuation of the original bargain. He could be affected only by his own acts or declarations. It is contended, that there was testimony tending to prove a sale by the intestate, and that this, being a question of fact only, should have been submitted to the decision of a jury. When a nonsuit is ordered, all the testimony is regarded as credible, and the facts stated in the testimony as proved. And when there is no longer any dispute respecting the facts; whether a party is entitled to recover upon such a state of facts, is a question of law; and as clearly so, as it would be upon a special verdict finding the facts. It is not necessary to consider the other point made in the defence.

Nonsuit confirmed.