
    Jacob Merritt et al., Respondents, v. Henry T. Given et al., Appellants.
    
      Practice — Instructions.—Instructions must not assume the existence of the facts in issue before the jury.
    
      Appeal from St. Louis Common Pleas Cou/rt.
    
    
      G. Campbell, for appellants.
    The fourth instruction given for the plaintiffs was as follows:
    “ The fact that plaintiffs gave instructions to defendants to sell the flour after it had been sold, not knowing it had been sold, will not justify a previous sale made without instructions, and contrary to plaintiffs’ orders, nor constitute any defence against such previous sale made contrary to plaintiffs’ orders.”
    
      R. S. Hart, for respondents.
   Bates, Judge,

delivered the opinion of the court.

The judgment in this case is reversed because the fourth instruction given for the plaintiffs assumed the existence of facts which were the very matters in dispute proper for the consideration of the jury.

Reversed and remanded.

Judges Bay and Dryden concur.  