
    [No. 6388.]
    P. J. WOOD v. E. TOMLINSON.
    Erroneous Instruction.—An instruction which assumes a material fact not admitted by the pleadings is erroneous.—[Reporter.]
    Appeal from the District Court of the Eighth Judicial District, Humboldt County.
    Action to recover the value of one hundred and ninety-eight hogs sold and delivered. The answer admitted the delivery of one hundred and twenty-eight hogs, but denied that any greater number were delivered. At the trial, which was by the Court with a jury, the Court upon the request of the plaintiff gave the following instruction, which is referred to in the opinion:
    “ If from all the evidence you find that defendant agreed to receive the hogs at plaintiff’s [Wood’s] ranch, then you will find for plaintiff for the amount the hogs would bring at four cents a pound, less the three hundred dollars advanced by defendant therein.” The jury returned a verdict for the plaintiff for the full amount claimed, and judgment was rendered accordingly. The defendant appealed.
    
      J. J. DeHaven and J. D. H. Chamberlain, for Appellant.
    S. M. Buck and P. J. Wood, for Respondent.
   By the Court :

The third instruction given at the request of the plaintiff assumes the fact that the plaintiff delivered all the hogs to the defendant, and in that respect it is erroneous, so far as it relates to the number in excess of that which is admitted by the answer to have been delivered to the defendant.

Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.  