By the Court. The plea is non-assumpsit to counts for goods sold and delivered, money lent, money paid, and money had and received : and the proof is of a promise to pay the balance of an account stated without specification of items. Thus far there is no proof of a sale of goods, and the evidence of a promise is applicable only on the supposition that an account had been stated between the parties, and a promise by the defendant to pay the balance. But there is no count on an account stated. Hamilton, for plaintiffs. J. A. Bayard, for defendant.
We shall tell the jury, however, that if they have other evidence that this balance claimed was for goods sold and delivered, they may find for the plaintiffs; but on the present evidence we should have to direct a verdict for defendant. The plaintiffs finally recovered.