
    HOPKINS v. SICKLES.
    Rescisión of a contract — settlement takes away the right of action on it — court may comment on facts, not find them for a jury.
    On a contract for articles to be delivered in future, and when part only are delivered a settlement takes place, that rescinds the contract as to future delivery, and destroys the right to recover for any violation of the original agreement.
    A court may comment on facts to a jury, and assist them in searching for the truth, but it has no authority to instruct the jury what facts are proven by oral testimony.
    Error to the Common Pleas. Sickles declared below, on a contract to make fifty good barrels to hold whisky, for a reasonable reward, twenty-seven of which were delivered, but were so bad and leaky, that the plaintiff lost five hundred gallons of whisky. Pleas, as to the promise for fifty barrels, non assumpsit; as to the twenty-seven barrels, that the loss of whisky was occasioned by the carelessness of the plaintiff. At the trial, the plaintiff proved a contract to deliver six barrels a week, or eight if possible, to the amount of fifty in all, the delivery of twenty-seven, and that they leaked and were of bad quality. The defendant proved that the plaintiff told the defendant, the barrels leaked, were of bad quality, and had not been delivered as fast as he talked of, and that he would pay for what he had in whisky and store goods, but would not take any more, or have any fuss about it.
    The defendant’s counsel then asked the court to instruct the jury—
    1. That the proof did not support the contract set out in the declaration.
    
      2. That the defendant’s evidence showed the contract'rescinded, and that, therefore, they could not recover.
    The Court refused these instructions, but charged the jury— 1. That there was no substantial variance between the contract declared upon, and the one proven. 2. That it did not appear the contract had been so rescinded as to prevent a recovery for the damage resulting from the barrels received.
    There was a verdict and judgment for the plaintiff below, and the defendant now seeks to reverse the judgment for error of the court in refusing and in giving the instructions above.
    
      Webb and Bates, for the plaintiff in error.
   Wright, J.

If the contract was rescinded by the parties as to future delivery, and a settlement was made for the barrels delivered, that destroyed the right of the plaintiff to recover, and the court, if required, should have instructed the jury so. But the court were asked to instruct the jury what facts were proven, instead of being required to give them the law arising upon the facts as they should find them; in doing this the court erred. Facts are for the jury, not the court; the law is with the court. The judge may comment on the facts, and assist the jury in their search for truth, but he has no right to instruct the jury how to find any fact depending on parol evidence. For this error, the proceedings since the making up thé issue, are reversed, and the cause is remanded. It is unnecessary to express any opinion upon the other points argued.  