Where the plaintiff is nonsuited on the facts, no motion for new trial is necessary, the action of the Court in granting a nonsuit being a pure question of law. (Pratt v. Hull, 13 Johns. 335.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Terry, C. J. concurring.
OPINION
BALDWIN, Judge
This action was brought to recover a sum of money due for goods sold by Goodwin and plaintiff, partners, to the defendant, Goodwin assigning his interest to the plaintiff. The case having been tried by the Court a nonsuit was ordered, from which plaintiff appeals. Two errors are assigned.
First --That Goodwin, who was offered as a witness for plaintiff, was rejected as incompetent. If in any case one partner can assign to another his interest in a firm claim and afterwards become a witness for him, he could not in this case, for the claim here sued on was clearly an unliquidated demand, within the meaning of the Practice Act.
Second --The second error assigned is in granting a nonsuit. A preliminary objection is taken that no motion for a new trial was made. Nor is any necessary. The granting of the nonsuit on the facts, being a pure question of law, which is properly raised on the record for review by exception taken.
The Court, we think, should not have granted a nonsuit. There was some evidence tending to prove an indebtedness, by express contract or implied, from defendant to plaintiff. The fact that the bill of sale recited the consideration as paid did not conclude the plaintiff as to that fact, for it is well settled that such recitals are only prima facie evidence, which may be rebutted or explained by parol proof.
Judgment reversed and cause remanded.