ON REHEARING.
In our former opinion we held that the plaintiff was entitled to recover without this addition to the instruction if they were entitled to recover in any event. Upon reconsideration we are persuaded that in so holding we were in error.
It was a question for the jury, and not for the court to determine in the first place, whether plaintiff, under the evidence, as it was not all one way, had complied with the contract on his part. It may have been but for the instruction the finding would have been different. It presented a different issue from the real one, and for that reason alone it was misleading. And the court wisely set aside the verdict and granted a new trial. Affirmed.
All concur.