80 W. Va. 111 | W. Va. | 1917
The judgment complained of upon this writ of error was rendered by the circuit court of Harrison county in an action of trespass on the ease brought for the purpose of recovering damages for injuries which the plaintiffs allege were sustained by reason of the failure of the defendant to comply with its warranties in the sale to them of certain tubing and casing for oil wells. Defendant is a large dealer in supplies used by oil and gas operators including, among other things, tubing and casing used in oil and gas wells. It has offices and stores in practically every oil field in the United States, and has been engaged in this business on this extensive scale for a number of years. The plaintiffs had a lease for oil and gas purposes on a tract of forty acres of land in Harrison county known as the Hildreth tract. They had drilled a well on this lease and at the depth of 3340 feet it produced oil in large quantities. The operations of the plaintiffs were managed largely, if not entirely, by the two partners, George A. Schaffner and Jacob P. Schaffner, both of whom had had long experience in the business of producing oil both as drillers of wells on their own account and for other people. When the first well was completed upon the Hildreth lease, which is. designated as Well No. 1, the plaintiffs desired to obtain tubing to insert therein. It appears that in
Plaintiffs then brought this suit to recover damages for the injury sustained by them by the loss of these wells Nos. one and three. They base their claim for damages upon three grounds: First, that there was an implied warranty at the time the plaintiffs purchased the' easing and tubing that the same would be fit for the purpose for which it was intended; Second, that there was an implied warranty upon the part of the defendant that the material furnished by it would comply with the particular description by which it was sold; and, Third, that the defendant was guilty of fraud and deceit in furnishing to the plaintiffs steel tubing when it had sold them iron tubing.
The first question presented is, whether the plaintiffs can maintain an action on the case for. a breach of warranty and join therewith a count for deceit, as was done in this instance. In Trice v. Cochran, 8 Gratt. 442, it is held that case is a proper remedy for the breach of an express warranty of soundness of a slave or other personal chattel sold.
In Schuchardt v. Allens, 1 Wall, 359, the court held that either case or assumpsit might be maintained to recover damages for a breach of a warranty, and in the event the action was on the case for tort a count for deceit might be added to the special count in case, and a recovery be had for the false warranty, or for the deceit, according to the proof.
It seems to be well established that a suit for a false war
Plaintiffs’ first contention is that the defendant impliedly warranted that the material furnished by it for the purpose of tubing and casing the oil wells above referred to would be reasonably fit for that purpose; that this warranty arises by reason of the fact that the defendant knew for what purpose the plaintiffs intended to use this material, and knew that plaintiffs relied upon it to furnish such material as would be fit for the purpose for which it was intended. The court instructed the jury upon this theory of the case, and should it be determined under the facts that there was not such an implied warranty of fitness, the court’s instruction in this regard was error. The question of when an implied warranty of fitness arises is one that has been dealt with by the courts in many' instances. That an implied warranty,- that the articles furnished by the seller are fit for the purpose for which they are intended, exists in certain cases there is no doubt. "Where the buyer discloses to the seller his needs and the purpose to which the goods purchased are to be applied, and leaves it to the judgment of the seller to supply articles which will meet those requirements, then the seller, if he accept the order, will be taken to impliedly warrant that the articles he selects will meet the requirements of the buyer, but in order to raise this implied warranty these conditions must all exist. The conditions under which such a warranty will be implied are laid down in the case of Jones v. Just, L. R. 3 Q. B. 197. This case is cited by most of the courts in discussing this question, and the doctrine there stated by Judge Mellor meets with general approval. The conditions under which warranties arise for the sale of" personalty was stated by the learned judge in that case as follows: “First, where goods are in esse, and may be inspected by the buyer, and there is no fraud on the part of the seller,’ the maxim caveat emptor applies, even though the defect which exists in them is latent, and not discoverable on examination, at least where
Secondly, where there is a sale of a definite existing chattel specifically described, the actual condition of which is capable of being ascertained by either party, there is no implied warranty.
Thirdly, where a known described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, described, and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.
Fourthly, where a manufacturer or a dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied term or warranty that it shall be reasonably fit for the purpose to which it is to be applied. In such a case the buyer trusts to the manufacturer or dealer, and relies upon his judgment and not upon his own.
Fifthly, where a manufacturer undertakes to supply goods, manufactured by himself, or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article.”
In Mechem on Sales, §§1343 and 1344, the author treats of'this same question, and very clearly states the doctrine to
“The rule of caveat emptor cannot apply here for the same reasons which give rise to the implied warranty of merchantability. No specific chattel is had in view. The buyer discloses to the seller his need, and trusts to the judgment, skill or experience'of the-seller to supply an article which shall be suitable for the buyer’s purposes, and which the seller, by accepting the order, impliedly agrees to produce. The rule here, therefore, is that, where the buyer, disclosing the purpose to be accomplished, orders an article to supply that purpose from a manufacturer or dealer in such articles, trusting to the latter’s skill, judgment or experience to determine what the article shall be, the seller, by accepting the order, impliedly agrees that the article which he supplies shall in fact be reasonably fit and appropriate to the purpose so disclosed.”
In 35 Cyc. page 399, it is stated that: “There is no general implication of warranty that the goods sold are fit for the purpose for which they are purchased if the seller is not informed of such purpose, especially where the buyer inspects or has an opportunity to inspect the goods; but an implied warranty of fitness will arise if they are purchased for a particular purpose of which the buyer informs the seller, and the rule applies especially if the seller is a dealer in the article or is a manufacturer thereof. If, however, a specific article, or one known, defined, and described, is ordered and furnished there is no implied warranty of fitness for particular purpose, although the seller is informed of such purpose, for the reason that an. undertaking as to fitnesg is not implied when the buyer gets what he bargained for. So too there is no implied warranty that the article is as suitable for the purpose as other articles of the same kind."
"Williston on Sales, §236, says: “If the buyer either en
We conclude from these authorities that an implied warranty of fitness of goods will arise when the buyer discloses to the seller his needs-or the purpose to which he intends to apply the goods purchased, and orders from the seller such goods as will meet those requirements, leaving it- entirely to the judgment of the seller as to what particular goods he will supply; but where the buyer discloses to the seller the purpose for which he desires the goods and suggests that an article of a particular kind is desired by him, and the seller cannot supply the particular article desired, but advises the buyer that he does have an article which is being satisfactorily used by others for similar purposes, and recommends such other article, and the buyer thereupon orders such other article, there will not arise any implied warranty that the goods furnished will be fit 'for the purpose to which the buyer intends to apply them. The buyer will be taken to have exercised his judgment in the selection of the goods described, and if the seller furnish articles which conform to the description by which they are purchased he will have met the obligation of his contract. 35 Cyc. 399; Williston on Sales, §236; Mechem on Sales, §§1343 and 1344; Jones v. Just, 3 L. R. Q. B. 197; Ollivant v. Bayley, 5 Q. B. 288; Thompson Mfg. Co. v. Gunderson, 49 L. R. A. 859; Beggs v. Brewing Co., 27 R. I. 385; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120; Tilton Safe Co. v. Tisdale, 48 Vt. 83; Davis Calyx Drill Co. v. Mallory, 137 Fed. 332; Peoria Grape Sugar Co. v. Turney, 175 Ill. 631; DeLoach Mill Mfg. Co. v.
The plaintiffs cite a number of authorities to sustain their contention that in this case there is an implied warranty that the tubing furnished by the defendant would be fit for the use to which plaintiffs intended to apply it. A review of these cases, however, discloses that they are not in conflict with the doctrine laid down in the authorities above cited. Among the eases relied on by the plaintiffs is that of Jones v. Bright, 5 Bing. 533. In that case the subject matter of the contract of sale was copper for a ship, and the facts were that the plaintiff purchased from the defendant, the manufacturer, copper for sheathing a ship. The defendant knew the object for which the copper was wanted and said, “I will supply you well.” The copper furnished turned out to be unfit for the purpose of sheathing the ship, and the court held that the seller was liable upon an implied warranty of fitness. It will be noticed in that case that the article to be furnished was left entirely to the judgment of the seller, it not being agreed upon between the parties what particular thing should be supplied to meet the buyer’s needs, Avhile in the case at bar it was agreed upon between the parties that tubing of a certain size, weight, and made of certain material should be supplied.
The same may be said of Brown v. Edgington, 2 Man. & G. 279, except that in that ease a rope which was ordered for a particular purpose, and which the seller was to select, was involved instead of copper sheathing.
The case of Gerst v. Jones, 32 Gratt. 518, also falls within the same class. In that case the seller undertook to furnish
All of.the cases cited by the plaintiffs can be easily distinguished from the case at bar. Here the parties after a conference agreed on what should be furnished for the buyer’s purpose. The seller told the buyer what he had; told the buyer that it was being satisfactorily used for that purpose by others, and recommended it to the buyer for his purpose; and the buyer thereupon ordered the quantity necessary for his needs. If it should be held that under these circumstances there was an implied warranty that this tubing should be fit for the purpose to which it was intended to apply it, it would.be inconsistent with the other contention made by the plaintiffs, that there is an implied warranty that it would correspond with the description by which it was sold. The plaintiffs contend that the defendant was under obligation to furnish 4-% pound iron tubing, and that there was an implied warranty that the tubing furnished would be 4-% pounds in weight, and would be made of iron. Suppose it should turn out that tubing of this description was not fit for plaintiffs’ needs; that plaintiffs’ needs could not be met by the use of iron tubing at all, but that tubing made of some other substance was necessary to be used, can it be said that the defendant would be under the obligation to furnish wooden tubing, we will say, which would be necessary and proper to meet the reasonable requirements of the plaintiffs under an implied warranty to furnish an article fit for the use to which it is intended to be applied, and also that it must furnish iron tubing under the implied warranty to furnish material conforming to the description by which it was sold? It would be entirely inconsistent to lay down a rule which would raise an implication of a warranty of fitness, and also a warranty of reasonable conformity to description as to the same transaction.
“When an article which the buyer has not seen is sold by description there is an implied warranty that the article shall be of the kind described, but no warranty of quality will be implied, or fitness for a particular purpose,, except that when the goods are described as of a particular grade or quality well known in the trade a warranty that they are of such grade is implied.”’ 35 Cyc. 403.
In Wilson v. Wiggin, 73 W. Va. 560, it was held in the first point of the syllabus: — “In the sale of lumber of a specified quality and grade, executory for future delivery, the buyer having no opportunity for inspection but relying on the seller to select, there is an implied warranty that the lumber furnished shall be of the quality and grade specified.”
The doctrine that where a seller contracts for the sale of an article by a particular description there is an implied warranty that the article delivered conforms to such description seems to be fully supported by the authorities in this country. Americus Grocery Co. v. Brackett, 119 Ga. 489, 46 S. E. 657; Timken Carriage Co. v. Smith, 123 Ia. 554; 99 N. W. 183; Morse v. Moore, 83 Me. 473, 23 Am. St. Rep. 783, 22 At. 362, 13 L. R. A. 324; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 16 Am. St. Rep. 753, 23 N. E. 372; Lenz v. Blake, 44 Or. 569, 76 Pac. 356; Northwestern Cordage Co. v. Rice, 5 N. D. 432, 57 Am. St. Rep. 563, 67 N. W. 298; Wisconsin Red Pressed-Brick Co. v. Hood, 60 Minn. 401, 51 Am. St. Rep. 539, 62 N. W. 550; Leavitt v. Fiberloid Co., 196 Mass. 440, 82 N. E. 682; Interstate Grocer Co. v. Bent
In the case of Handy v. Roberts, 165 S. W. 37, it is held: “Where a particular article is sold by description, there is ordinarily an implied warranty that‘it shall be of the kind described."
So in the case of Coleman v. Simpson, 143 N. Y. Supp. 587, it is stated: ‘ ‘ There is an implied -warranty on the part of every seller, whether manufacturer or not, that the article sold is identical with the article bought.”
There was evidence in this case upon which the jury might find that the defendant sold to the plaintiffs special pound iron tubing, and if such was the case the defendant was under obligation to deliver tubing corresponding to that description, and there is an implied warranty upon its part that the tubing delivered pursuant to that contract fits the description by which it was sold. Upon this question we think the court below properly instructed the jury.
Defendant contends that it was error to .submit this case to the jury upon the count for fraud and deceit, its contention being that the evidence does not justify the conclusion that the defendant’s agent Wilson was guilty of .any fraud or deceit in making the sale, even should the jury so find. The evidence upon this question is conflicting. One of the Schaffners testifies that Wilson sold 4-1/2 pound special iron tubing, and the other one testifies that while he does not recall that there was a positive representation that the tubing was iron, all of their conversation was in regard to iron tubing. The evidence is conclusive that the tubing furnished was not iron, and there is evidence that it was not 4-% pounds in weight. Wilson admits that the defendant never intended to furnish iron tubing, and if the jury found, and they could do so from the evidence, that he did agree to furnish iron tubing, then it might well be inferred that there was a fraudulent intent upon his part to procure this contract from the plaintiffs for one sort of material and furnish another, and they might well go further and find that being false in this regard he might have also at the time in
In 12 Ruling Case Law, p. 335, it is stated: ‘ ‘ Even where knowledge of the falsity of the representations is necessary to constitute fraud, it is not indispensable that the party making them should have actually known them to be false at the time when they were made. There are cases in which the law implies or presumes knowledge, and in which, therefore, the representation may, in contemplation of law, be made with knowledge of its falsity, so as to afford a right of action in damages, and, a fortiori, ground for equitable proceedings, without actual knowledge of either its truth or falsity. Thus, such knowledge is presumed to exist where false representations are made recklessly without regard to their truth or falsity, or are made as of one’s own knowledge when in fact he has no knowledge on the subject, or when the situation'or means of knowledge of thg person making them are such as to make it his duty to know the facts, or where the representations are made for a fraudulent purpose. In these eases proof of scienter is not dispensed with. It is simply a question of the method and quantum of proof.”
The Am. & Eng. Ency. of Law, vol. 14, p. 86, says: “By the overwhelming weight of authority, in order to render a person liable for false representations in an action of deceit, it must be shown that he made the representations scienter, — that is, either with actual knowledge of their falsity, or under such circumstances that the law will imply or impute knowledge, as in the case of reckless statements, without knowledge whether they are true or false, representations made for a fraudulent purpose, though without actual knowledge of, their falsity, and representations accompanied by a false assumption of knowledge, express or implied. As a general rule an action of deceit cannot be maintained if a false representation is made in the honest belief that it is true.”
In 20 Cyc. at p. 45, the doctrine is likewise laid down as follows: “Where a vendor in a sale or exchange of real or personal property makes false representations as to material facts relating to the property, having at the time knowledge
In Handy v. Roberts, 165 S. W. 37, the court said apropos of the question of furnishing different material from that which was contracted to be furnished: “If the seller of oats represented that they were of a certain kind, but knowingly delivered a wholly different variety with the intention that the purchaser should receive them for the kind agreed to be delivered, the seller was guilty of actionable fraud which would support an action in the nature of deceit by the purchaser."
In Litchfield v. Hutchinson, 117 Mass. 195, the court said: “If a person states, as of his own knowledge, material facts, which are susceptible of knowledge, to one who relies and acts upon them as true, it is no defence, if the representations are false, to an action, for deceit, that the person making them believed them to be true, although the declaration al
In this case, under the evidence, it was for the jury to say whether Wilson made a contract to sell iron tubing. It is admitted that it was to be 4pounds in weight. As before stated, the jury might find from the evidence that Wilson did sell iron pipe instead of steel pipe, and if they found such to be the fact, and also found as a fact that the pipe furnished was not 4-% pounds in weight, they might very well infer from the fact that he agreed to furnish iron pipe, knowing that he was going to furnish steel pipe, that he also agreed to furnish pipe 4-1/2 pounds in weight with the intent-to supply pipe of a lighter weight. Krumm v. Beach, 96 N. Y. 398; Cabot v. Christie, 42 Vt. 121; Phillips v. Jones, 12 Neb. 213; Culver v. Avery, 7 Wendell, 380; Hanscom v. Drullard, 79 Cal. 234; Savage v. Stevens, 126 Mass. 207; Harmon v. Blackwell, 223 Fed. 440; Marmet Coal Co. v. People’s Coal Co., 226 Fed. 646; Grand Rapids R. I. Co. v. United States, 234 U. S. 762.
Defendant further insists that the plaintiffs, having accepted the material furnished them by the defendant under the contract, cannot now complain that such material was not a compliance themvith. They contend that the plaintiffs should have inspected this material when it was delivered to them and ascertained whether or not it was the material which they purchased; that they should have weighed the pipe to find out whether or not it corresponded with the warranty of the defendant, and should also apply to it such tests as would have disclosed to them that it was steel instead of iron. Is there a duty upon the purchaser of an article which is sold to him by a particular description to inspect and test it upon delivery to see that it complies with the description by which it is sold ? In Mechem on Sales, at §1334, it is said: “While the distinction made by the English courts is clear enough and undoubtedly sound, so far at least as executory contracts are concerned, the buyer not being obliged to accept a tender of goods of some other kind than that which was agreed upon, the prevailing rule in the United States regards an executed sale of goods by a
In Gould v. Stein, 149 Mass. 570, 5 L. R. A. 213, the court held that: ‘ ‘ The fact that the purchaser had an opportunity to examine the goods and actually made such examination as he wished, will not necessarily do away with the effect of the warranty. He is not bound to exercise his skill, having a warranty, but may rely on that.”
In Kansas City Bolt & Nut Co. v. Rodd, 220 Fed. 750, it is held: “The doctrine that an implied warranty does not survive acceptance does not apply, unless the acceptance is with full knowledge of all the conditions affecting the character and quality of the article.”
A like holding was made in Long v. Armsby, 43 Mo. App. 253, as follows: “A sale by description imparts a warranty that the property sold is of that description, and whether the vendee is able to inspect them or not, it is an implied term of the contract that the goods shall reasonably answer such description, and, if they do not, it is unnecessary to put any other question to the jury. The action of the trial court in giving and refusing instructions in this case approved. ”
In Bagley v. Cleveland Woolen Mill Co., 21 Fed. 159, it is held: “A manufacturer of steel having, in obedience to several orders from a customer, furnished the latter with steel of a certain quality, if, upon receipt of a subsequent order from the same customer for the same article, he supplies an inferior quality, he is liable upon his undertaking that the steel was of the quality, ordered, and such liability is not lessened by the fact that the customer did not avail himself of his opportunity to test the steel before using it.”
We find from the authorities, and the conclusion is justified by reason, that where the buyer purchases goods by particular description there is a warranty that the goods furnished will conform to that description, and he can rely
Contention is made that the plaintiffs ought not to be allowed to recover damages for the loss of the two wells referred to in the evidence, for the reason that before- the tubing and casing were inserted in these wells at the time at which they were destroyed by the breaking of the tubing, plaintiffs knew; that the tubing was not iron, and also had information that it was because of defects in the tubing that the breaks therein had theretofore occurred. It is true that this tubing had parted on several occasions before the time it fell in the well, and plaintiffs were unable to recover it. Some of their employes had informed them that the tubing was not good, and they also knew before this time that it was not iron. Complaints were made to the defendant as these troubles arose, the plaintiffs insisting that their troubles were because of the character of the material furnished them by the defendant. On all of these occasions, however, the defendant contended that such was not the case; that the difficulties encountered by reason of the breaking of the tubing and leaking of the casing was not the fault of the casing or the tubing, but was due to the improper method adopted by the plaintiffs in' using this material. In fact, at the time of the trial, the principal matter in dispute was whether the injury,
Complaint is made that the court below erred in instructing the jury that the plaintiffs were entitled to recover as the measure of their damages the value of the wells as oil wells, less aiiy value they might have after their destruction. The criticism of this instruction is that it in effect allowed the jury to award the plaintiffs damages for the full value of the property and would not limit the recovery to compensation for the injury. Of course, it is well settled that damages in cases like this are awarded as compensation for an injury inflicted, and it may generally be said that only such damages should be allowed as will make the injured party whole. In this case the plaintiffs’ property was not taken from them. The wells, were simply a means used to convey the oil from its place in the subterranean sand to the surface of the earth, and the fact that one of these wells, or both of them, might be rendered unfit, for this purpose would not deprive the plaintiffs of their oil still remaining in place in the ground. This could be reclaimed by them by drilling another well for the purpose. It will be thus seen that if the effect of the measure of damages adopted by the court was to allow the jury to include in its estimate the value of the oil which would have been conveyed through those wells to the surface of the earth, it was an improper one. We are not prepared to say that this is the proper construction of the language used by the court below. The jury was limited in its inquiry to ascertaining the value of these wells as oil wells. Their value as oil wells is simply what they are worth as a means of conveying the oil to the earth’s surface. The witnesses who testified upon this question did not state upon what basis they arrived at the value of these wells as oil wells. Ordinarily the cost of producing such a well would be its value, and would limit the right of plaintiffs’ recovery, for while the oil remains in place the plaintiff can reclaim it through another well drilled in close proximity to the well destroyed, and the only loss sustained by him
Defendant complains that the court permitted witnesses to testify over its objection that the work of inserting the tubing and casing in these wells was done in the customary manner. It contends that the question at issue was not whether this work was done in the 'ordinary and customary way, but whether it was properly done. It is true that the question to be determined by the jury was not what was customary in such cases, but whether the particular work was done in a proper way. The manner in which this work was done was proven by the parties who did it, and we think it is clear that testimony of persons engaged in doing the same class of work, that this was the ordinary and customary way of doing it is competent to show that the plaintiffs were exercising due care in the application of the pipe. In Canadian Northern R. Co. v. Senshe, 201 Fed. 637, it was held that where the question was whether certain work of inspection was done in a proper manner it was competent to prove that the manner in which it was done was the customary and ordinary way of doing that work.
So in Shannahan v. Empire Engineering Corporation, 204 N. Y. 543, 98 N. E. 9, it was held that when such a question of negligence is involved general usage and practices are competent to show ordinary care. The common usage of
“* * * * And so, where the plaintiff’s injury was caused by an act on his part which the law regards as negligent per se, he cannot excuse his contributory negligence by proof of a custom on the part of others to do the same act in the same way. But where an act is not negligent per se, the plaintiff, to rebut a charge of contributory negligence, may introduce evidence of a general custom among persons, experienced in the performance of the same act, under similar circumstances, to perform it as he did."
From these authorities it seems quite clear that it is competent to prove the ordinary and customary way of doing an act as tending to show that the way in which it was actually done was or was not negligent.
It is also complained that the plaintiffs were allowed to prove that it was not customary to weigh pipe of this character in the oil fields in order to ascertain whether it was of the weight prescribed at the time it was sold. As we have before stated, the plaintiffs were under no obligation to inspect the tubing shipped to them. They could rely upon the implied warranty of conformity to description, and unless the defects which caused the injury were such as were plainly visible, or were known to them, they would not be
Defendant also complains that it was not allowed to show that it was not its custom to warrant the material sold by it. This evidence was.properly rejected by the court. If the controversy was whether or not there was an express warranty contended for on one side and denied on the other the custom of the defendant in that regard, if known to the plaintiffs, might be proven as a circumstance to corroborate their contention that such a warranty was not made, but it would have no pertinency in a' case where an implied warranty is relied upon. In 35 Cyc. 391, it is stated: “Although it has been held in some cases that a warranty may be implied by custom, the decided weight of authority is to the effect that a warranty will not be implied by usage or custom when none is implied by the common law, nor can custom or usage be shown against a warranty implied by law. To permit this to be done, it has been said, would be extremely pernicious in its consequences and render vague and uncertain all the rules of law on the sale of chattels.”
This text seems to be fully supported by the authorities. Dickinson v. Gay, 7 Allen 29; Barnard v. Kellogg, 10 Wall. 383; 29 Am. & Eng. Encyc. L. 385; Chicago Packing &c. Co. v. Tilton, 87 Ill. 547; Whitmore v. South Boston Iron Co., 2 Allen 52; Thompson v. Ashton, 14 Johns. 316; Wetherill v. Neilson, 20 Pa. St. 448; Jones v. Ellis, 68 Vt. 644, 35 Atl. 488.
It is also claimed that it was error to refuse to allow a witness to testify to the contents of a card which it was claimed was posted in the defendant’s store reciting that it would not be liable under any circumstances beyond the value of the goods sold. It was shown that the card had been
A great many assignments of error are made to the action of the court in the admission and exclusion of evidence during the trial of the case. What we have said we believe covers the substantial points relied upon and will be sufficient to furnish a guide to the circuit court in another trial.
The judgment below will be reversed, the verdict of the jury set aside, and the cause remanded for a new trial.
Reversed and remanded.