Beers v. Schallern
161 N.W. 557
N.D.
1917
Check Treatment
Bruce, Ch. J.

(after stating the facts as above). We are satisfied that reversible error was committed in the giving of the instruction complained of, and that a new trial should be ordered. The plaintiff, in our opinion, failed entirely to prove the special contract set out in his complaint, and the defendants’ theory of the case was not instructed upon. The testimony of the defendant was to the effect that the contract between him and the plaintiff was that he should only pay for *49two thirds of the cost of construction, and that of the plaintiff himself proves nothing more. 22 Enc. PI. & Pr. 564.

The judgment of the District Court is reversed and the cause is remanded for further proceedings according to law.