As the evidence showed that defendant agreed to 'fix the roof if plaintiffs “ stayed ”, and that plaintiffs stayed, but defendant failed to fix the roof within a reasonable time, and that by this fault of the defendant the plaintiffs were damaged as claimed, the complaint should not have been dismissed.
As it does not appear that the plaintiffs had concluded their case on any question, except that of defendant’s negligence, at the time of the dismissal, it is not necessary to consider the question of contributory negligence.
Judgment reversed and new trial ordered, with costs to appellants to abide event.
Present: Truax, P. J., Scott and Dugro, JJ.
Judgment reversed and new trial ordered, with costs to appellants to abide event.'