
    Nathan Tibbits v. Maggie I. Sweet.
    Filed January 18, 1905.
    No. 13,700.
    Instruction. An instruction is erroneous which, withdraws from the issues a material matter in dispute.
    Error to the district court for Sheridan county: William H. Westover, Judge.
    
      Reversed.
    
    
      W. W. Wood, for plaintiff in error.
    
      Allen G. Fisher, contra.
    
   Ames, C.

This is an action for damages for an alleged breach of a contract for the care and keeping by the defendant in error of certain live stock belonging to the plaintiff in error. The petition purports to set forth a list of the animals which were the subject of the contract, including among them a three-year-old steer. The answer admits the making of the agreement, in substance the same as that pleaded in the petition, except that it sets forth a list of the animals, omitting the steer, and denying every .other allegation of the petition. One of the principal controversies on the trial was whether a three-year-old steer was among the animals delivered and cared for under the agreement. This question the jury answered in the affirmative, but the court had instructed them that the answer “admits the making of the contract set out in the plaintiff’s petition, and admits that he delivered the stock described therein to the plaintiff, and left them with her.”

Presumably the instruction was inadvertently given, possibly because of the fact that the contract is in writing, and is in evidence, and includes a three-year-old steer, but that fact is not conclusive of the delivery of such an animal under the agreement, which was a vital matter in dispute, and which was withdrawn by the instruction from the issues. It is therefore recommended that the judgment of the district court be reversed and a new trial granted.

Letton and Oldham, CO., concur.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district be reversed and a new trial granted.

Reversed.  